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Keywords

contractbreach of contractplaintiffdamagesnegligenceliabilitysummary judgmentwilllimitation of liability
contractbreach of contractdamagesdepositionnegligenceliabilityappealtrialpleasummary judgmentwillappellantappelleelimitation of liability

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Wille v. Southwestern Bell Tel. Co., 219 Kan. 755, 549 P.2d 903, 19 UCC Rep.Serv. 447

Facts

Frank Wille, who operated a heating and air conditioning business in Wichita, had purchased yellow page listings for thirteen years. In February 1974, he agreed to new listings after a sales representative from Southwestern Bell contacted him. After changing his business location and phone numbers, Wille discovered in July 1974 that some of his listings were omitted from the new directory. He sought damages for lost profits and expenses incurred from alternative advertising, claiming breach of contract and negligence by the telephone company.

The facts, as revealed by the pleadings and appellant's deposition, are undisputed. Appellant Frank Wille operates a heating and air conditioning sales and service business in Wichita under the trade names, Frank Wille Company and Frank Wille's Coleman Comfort Center, and for the thirteen years prior to 1974 had purchased some form of yellow page listing for his business in the telephone directory published by appellee Southwestern Bell Telephone Company for the Wichita district.

Issue

Whether an advertiser can recover damages for negligence or breach of contract from a telephone company for an omission in the yellow pages when the contract limits the company's liability for errors and omissions to the cost of the advertisement.

This appeal presents the question whether an advertiser can recover damages for negligence or breach of contract from a telephone company for an omission in the yellow pages of a telephone directory when the contract entered into by the parties limits the company's liability for errors and omissions to an amount equal to the cost of the advertisement.

Rule

The court applied the principle that competent adults may make contracts on their own terms, and mere disparity of bargaining power does not render a contract unconscionable. The limitation of liability clause was deemed enforceable as it was clearly stated and the plaintiff was an experienced businessman.

American courts have traditionally taken the view that competent adults may make contracts on their own terms, provided they are neither illegal nor contrary to public policy, and that in the absence of fraud, mistake or duress a party who has fairly and voluntarily entered into such a contract is bound thereby, notwithstanding it was unwise or disadvantageous to him.

Analysis

The court analyzed the facts surrounding the execution of the contract and the experience of the plaintiff. It noted that the limitation of liability clause was clearly stated in the contract and that Wille, as an experienced businessman, should have been aware of the terms. The court found no evidence of gross negligence or willful misconduct by the telephone company, concluding that the omission was due to a clerical error.

The court noted that the limitation of liability clause was clearly stated in the contract and that Wille, as an experienced businessman, should have been aware of the terms. It found no evidence of gross negligence or willful misconduct by the telephone company, concluding that the omission was due to a clerical error.

Conclusion

The court affirmed the summary judgment for Southwestern Bell Telephone Company, ruling that the limitation of liability clause was enforceable and that the plaintiff could not recover damages.

Judgment affirmed.

Who won?

Southwestern Bell Telephone Company prevailed in the case because the court found the limitation of liability clause enforceable and determined that the omission was due to a clerical error rather than negligence.

The trial court entered summary judgment for Bell because of the contractual limitation of liability for errors and omissions and the matter is now here for review.

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