dissenting.
I respectfully dissent from the majority opinion. I cannot agree with that portion which holds that the limitation of liability clause in the contract between Southern Bell and Coastal Transmission was also applicable to the independent tort found by the jury in the misprinted ad.
The Supreme Court has stated the basic rule quite clearly. “ ‘It is axiomatic that a single act or course of conduct may constitute not *619only a breach of contract but an independent tort as well, if in addition to violating a contract obligation it also violates a duty owed to plaintiff independent of contract to avoid harming him.’ ” Sheppard v. Yara Engineering Corp., 248 Ga. 147, 148 (281 SE2d 586); accord: Tapley v. Youmans, 95 Ga. App. 161 (1) (97 SE2d 365); E.& M. Constr. Co. v. Bob, 115 Ga. App. 127, 128 (153 SE2d 641); Rawls Bros. Co. v. Paul, 115 Ga. App. 731 (1) (155 SE2d 819); Orkin Exterminating Co. v. Stevens, 130 Ga. App. 363, 365 (203 SE2d 587); Long v. Jim Letts Olds., 135 Ga. App. 293 (2) (217 SE2d 602); Travelers Ins. Co. v. King, 160 Ga. App. 473, 475 (287 SE2d 381). It cannot be argued that each of us is not under a duty—independent of any contractual obligation, not to libel another. Code Ann. § 105-701 (now OCGA § 51-5-1). Hence, Southern Bell is guilty of a breach of its contractual duty as well as the independent tort of libel. Thus, the crucial divisive factor between the majority and myself is whether the limitation of liability clause which applied to the contractual breach also applies to the independent tort of libel. I find that it does not.
Professor Prosser advises that “[c]ontract obligations are imposed because of conduct of the parties manifesting consent. . . But if A negligently runs B down with his automobile, a cause of action arises, not because of any promise to refrain from the commission of the act, but because the law imposes upon A a duty, owed to anyone in his path, to refrain from inflicting such injuries. The remedy in such a case is in tort.” 4 Prosser, Law of Torts 613, § 92. In this case, Coastal Transmission never consented to be libeled nor can such be reasonably inferred from the limitation of liability clause in the contract and the misfeasance of the contract was also a tort of libel. Where one act of a defendant breached a contract with the plaintiff and also amounts to a tort, the plaintiff has his choice of action. Rawls Bros. Co. v. Paul, 115 Ga. App. 731, 733, supra; Prosser, Law of Torts 616, 617, § 92. Both Professors Corbin and Prosser agree that “[i]f the breach of contract is also a tort or involves the commission of a tort, a provision limiting the liability in damages for the breach may not be operative as a limitation of the liability in tort.” (Emphasis supplied.) 5 Corbin on Contracts 389, § 1068; 4 Prosser, Law of Torts 619, § 92. Prosser bases his decision on the fact that “damages recoverable for breach of contract are limited to those within the contemplation of the defendant at the time the contract was made . . . They may be further limited by the contract itself, where a tort action might avoid the limitation.” (Emphasis supplied.) Id. at 619.
The reasoning behind their opinion is basic contract law. What was the intent of the parties in the limitation of liability clause in the printing contract? What type of negligence was contemplated by the *620parties? Was it only to cover errors in omission or mistakes in the name or address? Or, did both parties intend to include a release from damages for any libelous publication? The majority finds: “We cannot say that this incident was not within the contemplation of the parties.” I disagree. I cannot construe the limitation of liability agreement to cover or control an event that neither party anticipated nor intended to be covered — libel and commercial defamation. I cannot envision a business person consenting in a contract to be libeled, and his business to be commercially defamed, for the simple consideration that the libelous publication would not cost him anything. This result is reached by the majority opinion. From the wording of the agreement, it is clear that the only subject matter covered or contemplated was an omission to publish or an error in the name, number, or address of the subscriber.
I find that a portion of the majority opinion supports the verdict for Coastal Transmission, i.e. “The injury sued for in this case is not merely the error in printing the defamatory matter but the subsequent distribution of the publication — particularly the continuation of distribution after the error had been brought to the attention of local and regional Southern Bell officials.” They also stated: “ ... in view of the exculpatory contractual provision he must show wilful or wanton conduct or conduct so charged with indifference to the consequences as to justify the jury finding a wantonness equivalent in spirit to actual intent to injure him in order for him to recover from Southern Bell in this case.” Thus, conceding the initial error was caused by a negligent striking of an “r” for the “g” in the word “gear,” the error was compounded by the failure to proof the original composition. Further, the error was exacerbated by the negligent printing, and negligent proofing, of the finished printed yellow pages. However, there was no negligence in the continued distribution of the libelous ad in the yellow pages directory after Southern Bell officials were notified on February 5 of the libelous ad, and they continued distribution of the libel through February 19. There was two complete weeks of knowing, intentional, deliberate distribution of a libelous publication with conscious indifference to the consequences to the libeled individual and Coastal Transmission. Hence, under the authority cited by the majority, even if the exculpatory clause applied there is sufficient evidence of “wilful or wanton conduct so charged with indifference to the consequences as to justify...” a finding for Coastal Transmission. The indifference of Southern Bell was shown when one official would not talk to Barrow because he was leaving for a two week seminar and another said he would just have to live with it for one year — and then continued with two additional weeks of distribution.
*621In Georgia it is a recognized tenet of the law that the one who is injured by a breach of contract is bound to lessen his damages as far as practicable. Code Ann. § 20-1410 (now OCGA § 13-6-5). This rule also applies to torts. Restatement, Torts 2d § 918; see also 8 EGL 38, Damages, § 29. The plaintiff in the instant case did this by immediate notification of Southern Bell officials. If the party wronged is under an obligation to diminish deunages, there is no just reason why the tortfeasor should not be under the same obligation to diminish damages caused by his wrongdoing. The majority opinion agrees. Restatement, Torts 2d, states: “One who intentionally and unreasonably fails to remove defamatory matter that he knows to be exhibited on land or chattels in his possession or under his control is subject to liability for its continued publication.” Restatement, Torts 2d, § 577 (2) p. 201. And, “when, by measures not unduly difficult or onerous, he may easily remove the defamation, he may be found liable if he intentionally fails to remove it.” Id. Comment on subsection (2) p. 208. In the instant case, Southern Bell officials were made aware of the libelous matter on February 5, and knowingly refused to mitigate damages already caused and which would be caused by continuing distribution. They wilfully chose to increase the damage already caused rather than delay distribution of the remainder of the directories for a few days while one or two persons could have obliterated the offensive matter with a rubber stamp. Such continued publication is a tort wholly apart from the original contract (Restatement, Torts 2d, § 577 (2)) and liability exists for such action — even if Southern Bell were not responsible for the original libel. Hellar v. Bianco, 111 Cal. App. 2d 424 (244 P2d 757); Tidmore v. Mills, 33 Ala. App. 243 (32 S2d 769); Restatement, Torts 2d, § 577 (2).
This court has held that “where the breach of contract is not also a tort, limitations of liability for breach will usually be given effect.” (Emphasis supplied.) Orkin Exterminating Co. v. Stevens, 130 Ga. App. 363, 365, supra. Accordingly, I agree with Professors Corbin and Prosser, and the Orkin decision, that limitation of liability clause in a contract is not operative as to a tort arising from the same contract which is a violation of an independent duty not to libel another — particularly when the tortfeasor has full knowledge of the libelous matter within his possession and continues distribution of the libel with conscious indifference to any damage it could cause to the person or corporate entity defamed. I would affirm the judgment.
I am authorized to state that Presiding Judge McMurray and Judge Pope concur in this dissent.