Pinkerton Nat. Detective Agency, Inc. v. Stevens

• Decision Date: 03 July 1963
• Docket Number: 40132,Nos. 40131,No. 1,s. 40131,1
• Citation: 132 S.E.2d 119,108 Ga.App. 159
• Parties: PINKERTON NATIONAL DETECTIVE AGENCY, INC. v. James A. STEVENS et al. (two cases)
• Court: Georgia Court of Appeals

Page 119

132 S.E.2d 119

108 Ga.App. 159

PINKERTON NATIONAL DETECTIVE AGENCY, INC. v. James A. STEVENS et al. (two cases).

Nos. 40131, 40132.

Court of Appeals of Georgia, Division No. 1.

July 3, 1963.

Syllaubs by the Court

1. (a) The loss of consortium of the spouse is an indirect injury to the person as to which the statute of limitation is two years from the date of injury.

(b) A petition will not be dismissed on general demurrer if any part of it states a cause of action.

2. (a, b) Where the violation of the right of privacy is alleged by way of overt and extended activities of the defendant in causing the plaintiff to be followed, harassed and terrified over an extended period of time as a result of unreasonable surveillance, allegations showing that these activities resulted in fright, shock, and physical and mental impairment of a more or less permanent nature are sufficient to sustain the action regardless of whether or not the course of conduct was wilfully and wantonly pursued in an effort to intimidate the plaintiff and cause her to abandon a pending damage suit against a third party, or merely undertaken in a negligent manner.

(c) The right of privacy may be implicitly waived and it is waived by one who files an action for damages resulting from a tort to the extent of the defendant's intervening right to investigate and ascertain for himself the true state of injury. However, this includes only a waiver of that reasonably unobtrusive type of investigation which would be to the best interests of the defendant in preparing its case. Activities consisting of overt and prolonged 'trailing' of the defendant in a conspicuous manner sufficient to excite the speculation of neighbors, constant following in public places, pursuit tactics openly conducted late at night such as would ordinarily alarm an average person, together with other acts amounting to trespass and eavesdropping, cannot as a matter of law be said to be reasonable conduct in defense of the damage suit within the implied waiver of investigation resulting from filing such an action.

3. Count 1 of the petitions in this case is construed as being founded upon the invasion of the right of privacy in a negligent manner by the commission of intentional acts; that is, with the intent to commit acts alleged to be wilful and wanton but without specific intent to injure the plaintiff. Count 2 of each petition is founded upon a wilful and intentional tort. The separate counts of each petition are not duplicitous.

4. The time of the occurrence of the various acts comprising the tort is alleged with sufficient particularity.

5. 'In a controversy between two persons regarding a given subject matter, evidence as to what occurred between one of them and a third person with reference to a similar, though entirely distinct, Transaction, is irrelevant.' The plaintiff's question on interrogatory seeking information as to similar but distinct investigations made by the defendant in connection with plaintiff in other, unrelated, damage suits, is not reasonably calculated to 'lead to the discovery of admissible evidence' in the present case, and it was error to require the defendant to disclose the names of third parties unconnected with this transaction who had been the subject of similar investigations, nothing in the pleadings rendering admissible any information which could reasonably be obtained by this means.

Ruth Stevens filed an action for damages in the Superior Court of Fulton County against Pinkerton National Detective Agency, Inc. and its employer, United Services Automobile Association, alleging that the insurance company, which was obligated to defend the action under its contract of motor vehicle insurance with a defendant in a pending damages suit in which she was the plaintiff, invaded her right of privacy by the manner in which an investigation of her activities by private detectives was conducted, as a result of which she suffered severe mental, physical and emotional injury. Her husband, James A. Stevens, filed a companion action against the same parties seeking recovery for medical expenses and loss of consortium. The trial court overruled general and special demurrers to the petitions and these judgments are assigned as error.

Smith, Kilpatrick, Cody, Rogers & McClatchey, Barry Phillips, Thomas E. Joiner, Atlanta, for plaintiff in error.

Reeves & Collier, Merrell Collier, Woodruff, Savell, Lane & Williams, Edward L. Savell, Atlanta, for defendants in error.

RUSSELL, Judge.

1. This court is confronted at the outset by a necessity of meeting or avoiding a collision in case law presented by the defendant's motion to dismiss the petition of the husband J. A. Stevens on the ground that it is barred by the statute of limitation. The motion properly raised this question. Smith v. Central of Ga. R. Co., 146 Ga. 59, 90 S.E. 474. The petition was filed between two and four years after the injuries to Mrs. Stevens, and seeks actual damages of $50,000, as to which plaintiff alleges that $1402 represents medical expenses incurred for treatment of Mrs. Stevens' injuries and that 'he has lost the consortium of his wife and will be deprived thereof for the rest of her life.' No mention is made of loss of services co nomine. In Nunnally v. Shockley, 97 Ga.App. 300(5), 103 S.E.2d 74 it was stated generally that '[s]ervices of the wife constitute a part of consortium.' Loss of services, however, is a property right subject to a four year statute of limitation (Silvertooth v. Shallenberger, 49 Ga.App. 133(1, 2), 174 S.E. 365; Kelly v. McCoy, 85 Ga.App. 514, 518, 69 S.E.2d 625; Frazier v. Ga. Ry. Co., 101 Ga. 70, 72, 28 S.E. 684), whereas this court has held that loss of consortium, at least insofar as it involves the wife's loss of the husband's consortium, is an indirect injury to the person subject to a two year limitation. Schimmel v. Greenway, 107 Ga.App. 257, 129 S.E.2d 542, 543) The same right is involved in both instances, and it appeals to justice, logic, and common sense that no fictional difference should be allowed to affect substantial rights in different manners according to which person happens to be suing for the loss. Our courts have been plagued by the common law concept of loss of services before. In Hutcherson v. Durden, 113 Ga. 987, 992, 39 S.E. 495, 54 L.R.A. 811, it was observed: 'Our statute giving a right of action for the seduction of an unmarried daughter living with her parent sweeps away the flimsy fiction of the common law that a suit by a father for the seduction of his daughter can only be based on the relation of master and servant between the two, and must therefore be for the loss of the daughter's services, although when the plaintiff has thus brought his suit he can recover for the real wrong and injury inflicted upon him.' In the same case comparison is made with actions for criminal conversation, the authority cited holding that Blackstone and Chitty both declare that criminal conversation with the wife is an injury to the person of the husband 'and upon this point we are not aware that there is any conflict of authority.' In criminal conversation, consortium is the gist of the action (Hobbs v. Holliman, 74 Ga.App. 735, 739, 41 S.E.2d 332) and while Hobbs holds this loss to be a property right, as also does Nunnally v. Shockley, supra, both seduction and criminal conversation are indirect injuries to the person (Hutcherson v. Durden, supra) and it is difficult to see how consortium, which is the gist of the latter, can be a personal right in that cause of action and a property right in this one. An action for loss of consortium may lie without alleging loss of services. In Georgia, as generally, while a husband may recover for the loss of services of his wife (Code § 105-107 and citations; Community Gas Co. v. Williams, 87 Ga.App. 68(6), 73 S.E.2d 119) the wife has no right of action for the services of the husband in supporting and maintaining her (Brown v. Ga.-Tenn. Coaches Inc., 88 Ga.App. 519, 532, 77 S.E.2d 24; Bailey v. Wilson, 100 Ga.App. 405, 111 S.E.2d 106) 14 Mercer Law Review p. 444 consortium cannot therefore be absolutely linked to loss of services, and this was the basis of Brown. The one is an indirect injury to the person and the other is an injury to a property right. The action for consortium must therefore be brought within a two year period from the date of injury. The opinions in Nunnally v. Shockley, supra, and Hobbs v. Holliman, supra, are disapproved to the extent that they indicate a holding contrary to that here expressed.

However, a motion to dismiss in the nature of a general demurrer is not good if any part of the petition states a cause of action. Echols v. Thompson, 210 Ga. 37, 77 S.E.2d 521; Neloms v. Mathis, 98 Ga.App. 465, 105 S.E.2d 768. Insofar as this action seeks to recover medical expenses, this is a property right subject to a four year statute of limitation. Krasner v. O'Dell, 89 Ga.App. 718(2), 80 S.E.2d 852. Cf. Davis v. Boyett, 120 Ga. 649, 652, 48 S.E. 185, 66 L.R.A. 258, where in an action for seduction a distinction is made between recovery for the seduction itself, an indirect injury to the person of the father, and recovery for loss of services and expenses incurred in consequence of the action, an injury to a property right, as to which not only the time allowed for bringing the suit but the beginning point of the statute of limitations may be different. It follows that the trial court did not err in overruling the motion to dismiss the petition in case No. 40131.

2. (a) The amended petition set out substantially the following facts: Ruth Stevens was injured in a collision with an automobile driven by one Bell who was insured under a motor vehicle liability insurance policy by the defendant United Services Automobile Association, in which collision she suffered physical injury and severe shock to her 'nervous and emotional system.' She thereafter...