Opinion
42130.
ARGUED JULY 5, 1966.
DECIDED SEPTEMBER 6, 1966.
Action for damages. Chatham Superior Court. Before Judge McWhorter.
Donald E. Austin, for appellant.
Bouhan, Lawrence, Williams Levy, Frank W. Seiler, Walter C. Hartridge, II, for appellee.
Under the tariffs of the Federal Communications Commission and the other facts presented on a renewed motion for a summary judgment the court did not err in granting appellee's motion for summary judgment under the ruling of this court on a former appeal.
ARGUED JULY 5, 1966 — DECIDED SEPTEMBER 6, 1966.
This is the second appearance of this case before this court. In Sims v. Southern Bell Tel. Tel. Co., 111 Ga. App. 363 ( 141 S.E.2d 788), this court held that the trial court erred in granting a summary judgment because the applicable tariffs of the Federal Communications Commission were not before the court and were not required to be judicially noticed. In the last paragraph of the opinion of this court rendered on the prior appeal, it was stated: "If such tariffs are produced and are found to limit the sphere of the defendant's responsibility in such installations to the extent testified to by the defendant's deponents, subsequent grant of a summary judgment in favor of the defendant would be demanded, provided that the facts are otherwise the same as in this record. In such event, the evidence that an agent or agents of the defendant participated in the installation of the wiring leading from the connection point would not authorize a finding of liability on the part of the defendant since such acts would not be within the scope of their employment."
When the case got back to the trial court the appellee renewed its motion for a summary judgment and proved the applicable tariffs. Since the other facts shown on the second motion were the same otherwise than on the subject of the tariffs, the court granted the second and renewed motion for a summary judgment. From this judgment appellant appealed.
The applicable tariff is as follows: "All station equipment and station wiring, other than any equipment necessary for the suitable termination of the channel facilities on the customer's premises and other than the control equipment for reversals effected by the customer, referred to in B. 1. c. (2) (a) (I), and other than equipment referred to in D. 4. following, shall be provided by the customer. Program channel wiring on the property owned or leased by the customer and upon which the station is located may be included as station wiring . . ." "Premises" is defined in the tariffs before the court on this motion as follows: "The term `Premises' denotes the space occupied by a customer or authorized user when in a building or buildings on contiguous property (except railroad rights of way, etc.) not separated by a public highway." Each side presented an affidavit attempting to support its construction of the tariff as to the meaning of "premises." These affidavits are irrelevant. The definition of "premises" stated in the tariff is plain and unambiguous and not subject to construction. It is plain and indisputable that "premises" as used in the tariff refers to a space in one or more buildings and cannot by any stretch of the imagination be construed to mean space reaching from a telephone booth on one side of a public street to the mobile unit of the Coastal Broadcasting Company, Inc. on the other side of the street.
Since the duties of the appellee ceased upon the company's completion of its preparing the facilities in the telephone booth to carry the broadcast of the customer after the customer had connected its broadcasting unit to the appellee's wiring in the telephone booth, whatever the telephone company's agents might have done to assist the company's customer in stretching the wire from the telephone booth to the broadcasting mobile truck was outside the scope of the authority of the agents and the company as previously held.
The court did not err in granting the summary judgment.
Judgment affirmed. Frankum and Pannell, JJ., concur.