Bank of Indiana v. Tremunde

• Decision Date: 08 July 1977
• Docket Number: No. 76-320,76-320
• Citation: 8 Ill.Dec. 57,50 Ill.App.3d 480,365 N.E.2d 295
• Parties: , 8 Ill.Dec. 57 The BANK OF INDIANA, a National Banking Association, Plaintiff-Appellee, v. Donald TREMUNDE and Glenn K. Brown, d/b/a Burr Oak Black Angus Farms, a partnership, Defendants, and Sam Brown and Elizabeth Brown, Intervenors-Appellants.
• Court: United States Appellate Court of Illinois

Page 295

365 N.E.2d 295

50 Ill.App.3d 480, 8 Ill.Dec. 57

The BANK OF INDIANA, a National Banking Association, Plaintiff-Appellee, v. Donald TREMUNDE and Glenn K. Brown, d/b/a Burr Oak Black

Angus Farms, a partnership, Defendants,

and

Sam Brown and Elizabeth Brown, Intervenors-Appellants.

No. 76-320.

Appellate Court of Illinois, Fifth District.

July 8, 1977.

Williamson & Williamson, Vienna, for intervenors-appellants.

Paul T. Austin, Marion, for plaintiff-appellee.

KARNS, Justice:

This appeal arises out of a replevin suit brought in the Circuit Court of Johnson County by plaintiff-appellee, the Bank of Indiana, against Donald Tremunde and Glenn K. Brown, doing business as Burr Oak Black Angus Farms, a partnership. Tremunde and Glenn Brown are not parties to this appeal, and all issues arising out of alleged inproprieties in the replevin proceedings have been settled. The only issue remaining for our consideration on this appeal is whether the trial court erred in granting the bank's motions for directed verdict on the counterclaims for invasion of privacy of intervenors-appellants Sam Brown and Elizabeth Brown.

On October 27, 1975, the bank sought and obtained a writ of replevin to recover from the partnership certain farm machinery, cattle, and grain and feed in which the bank had a security interest. Some of the partnership property to be replevied was located on the Brown farm in Johnson County, near Belknap, where the partnership was engaged in raising beef cattle. This farm had been sold by Sam and Elizabeth Brown to their son Glenn and his wife JoAnn for $22,000 on September 8, 1973. There is no dispute as to the fact that no life estate was reserved in the names of Sam and Elizabeth Brown, who had no formal estate of any kind in the property. The younger Browns had, however, agreed orally that the parents could continue to live in the house located on the farm until their deaths.

After the writ had issued and been served upon Tremunde, Sheriff Faulkner of Johnson County went to the Brown farm to serve the writ upon Glenn Brown, at about 5:30 p.m. on October 27. The sheriff determined that Glenn Brown was not there, explained to Sam Brown what was going to happen, and left a copy of the writ of replevin with him. Shortly thereafter, a number of men in trucks arrived at the farm and began to load cattle and equipment pursuant to the writ. It took the men several hours to accomplish the loading operation, which was completed at about 10 p.m.

The complaints for invasion of privacy alleged in substance that the bank, through its agents, had unreasonably intruded upon intervenors' seclusion in the process of loading the cattle and equipment onto the trucks, during which the bank's agents "(s)houted obscenities and cursed and made loud noises after cover of darkness greatly disturbing the intervenor(s)"; that the activities alarmed them and caused them to be fearful for their safety; that they had not been made parties to the replevin action and had not been forewarned of the activities; that each of them had as a direct and proximate result of the actions of the bank's agents suffered invasions of privacy, and that Elizabeth Brown had become sick and required hospitalization for two weeks beginning on October 29, 1975.

At trial, Elizabeth Brown testified that she was 70 years old and was living on the farm with her husband on October 27, 1975. She said that about 5:00 or 5:30 p.m., the sheriff came to the door and informed them that he had a court order "to take the cattle and stuff." About half an hour later, just before dark, "a whole bunch" of trucks began to arrive. The men immediately "started trying to get the cattle up, load up the cattle, hollering and yelling at the cattle and trying to get the cattle up and getting trucks placed and started getting ready to load the machinery." She said that she and her husband had no notice that this operation was going to take place. She testified that:

" * * * I didn't sleep that night worth anything and the next day and night I became sick at my stomach and started vomiting and kept on all the rest of the day and into the night. Wednesday morning I had to call the doctor * * * and he put me in the hospital and I was in the hospital two weeks."

Since the night in question, she testified, "I've been awfully nervous and embarrassed and feeling ashamed being out to meet people about what had happened." She said that every time the incident comes up and anything is mentioned about it, it upsets her and makes her sick. On cross-examination, she testified that the only time she left the house that night was to go to the equipment shed to summon the sheriff to the telephone.

Sam Brown testified that he was 77 years old and had lived on the farm for 43 years. He said that the sheriff had told him about the court order, but not that the cattle and equipment were to be loaded that night. He testified that the men took certain property which belonged to him, not to the partnership. (The count of the counterclaim raising this issue was settled and dismissed with prejudice by stipulation of the parties and is not involved in this appeal.) He testified that he has a heart condition and that he took six heart pills that night because of pains in his chest, arms and throat.

At the close of all the evidence, the court granted the motions for directed verdict because of intervenors' total failure to prove causes of action for invasion of privacy.

The existence of a cause of action for violation of an individual's right of privacy was first recognized in this state in Eick v. Perk Dog Food Co., 347 Ill.App. 293, 106 N.E.2d 742 (1st Dist. 1952). (See also Annerino v. Dell Publishing Co., 17 Ill.App.2d 205, 149 N.E.2d 761 (1st Dist. 1953); Bradley v. Cowles Magazines, Inc., 26 Ill.App.2d 331, 168 N.E.2d 64 (1st Dist. 1960); Carlson v. Dell Publishing Co., 65 Ill.App.2d 209, 213 N.E.2d 39 (1st Dist. 1965).) Our supreme court first considered the right of privacy in Leopold v. Levin, 45 Ill.2d 434, 259 N.E.2d 250 (1970). The court noted in Leopold that there had been implicit legislative recognition of such a cause of action by the enactment in 1959 of a statute of limitations for suits complaining of violations of privacy. (See Ill.Rev.Stat.1975, ch. 83, par. 14.) Although the court rejected Leopold's action on First Amendment grounds, it said:

"We agree that there should be recognition of a right of privacy, a right many years ago described in a limited fashion by Judge Cooley with utter simplicity as the right 'to be let alone.' Privacy is one of the sensitive and necessary human values and undeniably there are circumstances under which it should enjoy the protection of law." (45 Ill.2d at 440-41, 259 N.E.2d at 254.)

(On the constitutional, as opposed to the common-law, right of privacy, compare Stein v. Howlett, 52 Ill.2d 570, 289 N.E.2d 409 (1972), with Illinois State Employees Ass'n v. Walker, 57 Ill.2d 512, 315 N.E.2d 9 (1974).)

Prosser, whose analysis has received wide acceptance (see Midwest Glass Co. v. Stanford Development Co., 34 Ill.App.3d 130, 339 N.E.2d 274 (1st Dist. 1975)), distinguished four forms of invasion of privacy: an unreasonable intrusion upon the seclusion of another; the appropriation for benefit of another's name or likeness; public disclosure of private facts; and placing another in a false light in the public eye. (Prosser, Torts § 117 (4th ed. 1971); see also Prosser, Privacy, 48 Cal.L.Rev. 383 (1960).)

As to the form of the tort with which we are here concerned, intrusion, Prosser wrote:

"It is clear * * * that there must be something in the nature of prying or intrusion, and that mere noises which disturb a church congregation, or bad manners, harsh names, and insulting gestures in public, are not enough. It is clear also that the intrusion must be something which would be offensive or objectionable to a reasonable man, and that there is no tort when the landlord stops by on Sunday morning to ask for the rent. It is clear also that the thing into which there is intrusion or prying must be, and be entitled to be, private. * * * " (Prosser, Torts § 117 at 808, footnotes omitted.)

The Restatement (Second) of Torts, which follows closely Prosser's formulation, provides a definition in Section 652B "One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another, or his private affairs or concerns, is subject to liability to the other for the invasion of his privacy, if the intrusion would be highly offensive to a reasonable person."

Although we have found no reported Illinois cases recognizing a cause of action for unreasonable intrusion upon seclusion, we assume, on the basis of the Leopold case, that our supreme court would recognize such an action were appropriate facts alleged and proved. In this case, however, we must agree with the court below that intervenors totally failed to prove such a cause of action. There was, we think, nothing unreasonable about the actions of the bank's agents, taken under the authority of a lawful court order, in loading the replevied cattle and equipment onto the trucks. Of necessity this process was noisy, and no doubt it would have been somewhat annoying to a reasonable person situated as were the Browns. There was no proof, however, of anything unreasonably intrusive about the procedure used, much less of anything which would have been highly offensive to a reasonable person. Nor was there any proof that Mrs. Brown's hospitalization was the foreseeably proximate result of the actions of the bank's agents.

It must be remembered that the right to privacy "is not a guaranty of hermitic seclusion." (Bradley v. Cowles Magazines, Inc., 26 Ill.App.2d at 333, 168 N.E.2d at 65.) Nor is it an absolute right. (Midwest Glass Co. v. Stanford Development Co.; Bloomfield v. Retail Credit Co., 14 Ill.App.3d 158, 302 N.E.2d 88 (1st Dist. 1973).) We think that the court...