Billings v. Atkinson

• Decision Date: 24 January 1973
• Docket Number: No. B--3043,B--3043
• Citation: 489 S.W.2d 858
• Parties: Lloyd BILLINGS, Petitioner, v. Norman E. ATKINSON, Respondent.
• Court: Texas Supreme Court

Page 858

489 S.W.2d 858

Lloyd BILLINGS, Petitioner, v. Norman E. ATKINSON, Respondent.

No. B--3043.

Supreme Court of Texas.

Jan. 24, 1973.

Ronald G. Byrnes, Houston, and Jack M. Finley, Gladewater, for petitioner.

Norman E. Atkinson, pro se.

DENTON, Justice.

This is an action for actual and exemplary damages for the alleged tapping of the telephone wire running into petitioner's home. The suit was instituted by Lloyd Billings, petitioner, against Norman E. Atkinson and his former employer, Southwestern Bell Telephone Company. At the close of the plaintiff's evidence in a trial before a jury, the trial court granted the telephone company's motion to withdraw the case from the jury and render judgment in its favor. Thereafter, the cause was submitted upon special issues as to Atkinson alone, which resulted in a verdict for Billings. The trial court granted Atkinson's motion for judgment non obstante veredicto. The court of civil appeals affirmed. 471 S.W.2d 908. No complaint is made here of the affirmance of the trial court's judgment in favor of the telephone company; therefore, the question of liability of the telephone company is not before us. We reverse and render that part of the judgment of the court of civil appeals which affirmed the trial court's judgment as to respondent Atkinson.

On the morning of June 7, 1967, petitioner's wife was talking to a neighbor over her telephone when a 'popping noise' developed in the line. They terminated the conversation and Mrs. Billings walked through her backyard toward her neighbor's home, when she observed a telephone workman working at a terminal box on the telephone pole behind her house. Mrs. Billings testified the repairman said he was sorry about the noise that he had made on the line. Later that same day Billings called his wife at home by telephone and they experienced the same loud 'popping' noise that made it difficult to carry on their conversation. Billings reported the telephone to be out of order. The next day another telephone repairman came to repair the line and discovered a wire tap device attached to the petitioner's line. The device was removed and the line was clear of noise. Ten days later petitioner's wife again observed a telephone repairman on the ople behind their home. She identified him as the same man she had seen on the pole the first time. She observed him as he looked into the terminal box and quickly departed. Mrs. Billings furnished the telephone company with the license number on the truck the repairman was driving. He was positively identified as Norman E. Atkinson, respondent. Shortly thereafter, he was discharged by the telephone company. The record shows that the device found by the telephone company in the terminal box would transmit conversations over a standard FM radio if connected to a telephone line.

The jury found that Atkinson attached a wire tap device to Billings' telephone on about June 7, 1967; that Billings suffered more than nominal damages; that Atkinson's act was done with the intention to deprive Billings of the private use of his residence telephone; that Atkinson should have reasonably anticipated that the act of placing the device on the telephone line would result in damages to Billings; that Billings suffered mental anguish as a result of the device being attached to his telephone line; that Atkinson's act was a proximate cause of Billings' mental anguish; that Billings suffered mental anquish in the amount of $10,000 and awarded $15,000 as exemplary damages. The trial court granted respondent Atkinson's motion for judgment non obstante veredicto.

The principal question presented is whether an action may be maintained for an invasion of the right of privacy. The court of civil appeals denied petitioner recovery on the ground Texas had adopted the common law as it existed in 1840 unless changed or added to or repealed by statute, and that since no right of privacy existed at common law nor had it been added by statute, there could be no recovery upon such a theory. In support of this holding, the court relied principally on Milner v. Red River Valley Pub. Co., 249 S.W.2d 227 (Tex.Civ.App. no writ).

The right of privacy has been defined as the right of an individual to be left alone, to live a life of seclusion, to be free from unwarranted publicity. 77 C.J.S. Right of Privacy § 1. A judicially approved definition of the right of privacy is that it is the right to be free from the unwarranted appropriation or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities in such manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities. 62 Am.Jur.2d, Privacy § 1, p. 677, and cases cited.

The courts had not prior to 1890 granted relief expressly for invasion of right of privacy although a right 'to be let alone' had been recognized 'on the basis of defamation, or the invasion of some property right, or a breach of confidence or an implied contract.' Prosser, Privacy, 48 Cal.L.Rev. 383. It was not until the publication in 1890 of an article by Samuel D. Warren and Louis D. Brandeis in 4 Harv. Law Rev. 193 that the term the 'right of privacy' was introduced and defined as a legal concept. The authors after thorough discussion of the question concluded that there is a common law right of privacy which had in some instances been protected under the guise of property rights, and that violation of the right itself is actionable. The right of privacy is generally recognized and a preponderance of authority supports the conclusion that, independently of the common law rights of property, contract, reputation and physical integrity, the right exists and an invasion of the right gives rise to a cause of action. The numerous decisions supporting these propositions are cited in the following annotations: 138 A.L.R. 22, 168 A.L.R. 446, 14 A.L.R.2d 750 and 11...