J. W. ALLEN, INDIVIDUALLY AND D/B/A ALLEN WHOLESALE SUPPLY, APPELLANT,
v.
SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, A CORPORATION, APPELLEE
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Appellant contracted with Southern Bell for yellow pages advertising but the telephone company erroneously inserted a competitor's contact information in his advertisement. The trial court granted summary judgment for Southern Bell based on a contractual limitation of liability clause, and the appellate court affirmed, finding only simple negligence rather than the gross negligence required to overcome the exculpatory clause.
The contractual limitation of liability clause is enforceable because the telephone company's conduct constituted only simple negligence, not gross negligence. Summary judgment was properly entered for Southern Bell because the evidence does not support a finding of gross negligence that would void the exculpatory clause.
[1] A contract's limitation of liability provision is enforceable when the underlying conduct constitutes simple negligence.
[2] An exculpatory clause in a telephone company's advertising contract is not rendered ineffective by simple negligence.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The Telephone Company's liability on account of errors in or omissions of such advertising shall in no event exceed the amount of charges for the advertising which was omitted or in which the error occurred in the then current directory issue and such liability shall be discharged by an abatement of the charges for the particular listing or advertising in which the omission or error occurred.”
The contractual exculpatory clause that limited Southern Bell's liability to abatement of charges, which the court found enforceable.
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Join FLexlaw to unlock all legal intelligenceAppellant Allen contracted with Southern Bell for advertising in the yellow pages directory. In the 1972-73 directory, Southern Bell erroneously inser…
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PER CURIAM.
Appellant-plaintiff appeals from a summary final judgment entered in favor of appellee.
Appellant contracted with appellee-Southern Bell for advertising in the “yellow pages” section of its telephone directory. In printing the 1972-73 directory, appellee erroneously inserted in one of appellant’s advertisements the telephone number and street address of appellant’s main competitor. Appellant instituted this action for compensatory and punitive damages alleging that the telephone company had willfully and maliciously changed the advertisement, or, in the alternate, the company’s conduct constituted gross negligence. The telephone company answered and moved for a summary judgment based on the deposition of appellant, certain affidavits, the contract between the parties, and particularly upon the following exculpatory clause:
“6. The Telephone Company’s liability on account of errors in or omissions of such advertising shall in no event exceed the amount of charges for the advertising which was omitted or in which the error occurred in the then current directory issue and such liability shall be discharged by an abatement of the charges for the particular listing or advertising in which the omission or error occurred.”
The trial judge found that no issue of material fact existed and entered the judgment appealed.
Appellant primarily urges that a genuine issue of material fact exists as to gross negligence on the part of appellee and, therefore, the limitation of liability provision is without force and effect.
We have reviewed the record in this case giving to appellant the benefit of each factual circumstance, and at the most find the conduct of the telephone company in this affair constituted an unintentional mistake. The evidence simply does not ascend beyond that of simple negligence.
We cannot help but note that the telephone company is vested with an exclusive monopoly in the field of “yellow pages” advertisements. A customer has a Hob-son’s choice. Either sign the contract proffered by the telephone company or forego the opportunity of enticing potential customers to his establishment by “letting the yellow pages do the walking for you”. We specifically, by this opinion, forego any consideration as to the legality of the cited exculpatory clause in a suit where issue is joined on simple negligence, as appellant failed to raise this issue. We are compelled to affirm the judgment appealed.
RAWLS, C. J., WIGGINTON, J., and DREW, E. HARRIS, Associate Judge, concur.
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