Bradshaw v. Michigan Nat. Bank, Docket No. 11141

• Decision Date: 23 March 1972
• Docket Number: Docket No. 11141,No. 2,2
• Citation: 39 Mich.App. 354,197 N.W.2d 531
• Parties: R. W. BRADSHAW and Sally Louise Bradshaw, Plaintiffs-Appellees, v. MICHIGAN NATIONAL BANK, a national banking corporation and H. Kositchek& Bros., a Michigan corporation, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 531

197 N.W.2d 531

39 Mich.App. 354

R. W. BRADSHAW and Sally Louise Bradshaw, Plaintiffs-Appellees, v. MICHIGAN NATIONAL BANK, a national banking corporation and H. Kositchek& Bros., a Michigan corporation,

Defendants-Appellants.

Docket No. 11141.

Court of Appeals of Michigan, Division No. 2.

March 23, 1972.

Released for Publication May 25, 1972.

Everett R. Trebilcock, Fraser, Trebilcock, Davis & Foster, Lansing, for defendants-appellants.

George H. Foley, Stackable & Foley, Lansing, for plaintiffs-appellees.

Before DANHOF, P.J., and T. M. BURNS and O'HARA, ^* JJ.

DANHOF, Presiding Judge.

The plaintiffs commenced this action seeking recovery for damages allegedly caused by the unsolicited issuance of a credit card. Pursuant to GCR 1963, 117.2(1), the defendants moved for summary judgment on the ground that the plaintiff had failed to state a claim upon which relief could be granted. The trial court denied the motion and the defendants appeal on leave granted.

In the latter part of 1966, Michigan National Bank issued a Credit Card in the name of R. W. Bradshaw. The card was sent to Bradshaw's former address by ordinary mail. The card fell into the hands of third parties who used it to make a number of purchases. The plaintiffs contend that they were injured by the acts of the defendants.

The plaintiffs argue that they are entitled to recover under a number of legal theories. They enumerate these as strict and absolute liability, negligence, invasion of privacy, and nuisance. The trial court denied the defendants' motion for summary judgment on the ground that the defendant, Michigan National Bank, was strictly liable and that the defendant H. Kositchek & Bros. could be liable for negligence in failing to ascertain the identity of the person who used the credit card. With regard to H. Kositchek & Bros., we hold that the trial court reached the proper result for the correct reason. With regard to Michigan National Bank, we hold that the trial court reached the proper result although it assigned the wrong reason.

We now turn to the specific theories advanced by the plaintiffs. The theories of strict and absolute liability have no application to this type of case. Strict liability is a term that has been used in product liability cases and absolute liability has been applied in cases involving persons who harbor dangerous animals or engage in abnormally dangerous activities. See Cova v. Harley Davidson Motor Company, 26 Mich.App. 602, 182 N.W.2d 800 (1970). The law of nuisance also has no application to this case. On the facts of this case as alleged in the complaint we see no violation of the plaintiffs' right of privacy. There are 4 branches to the right of privacy; intrusion, public disclosure of private facts, false light in the public eye, and appropriation. See Prosser, Torts, § 112. On the facts pleaded, the only right of privacy argument that could be applied is a theory of intrusion. Intrusion is based on the invasion of something that a person has a right to keep private. See DeMay v. Roberts, 46 Mich. 160, 9 N.W. 146 (1881). However, this intrusion must be by some means that a reasonable man would find objectionable. Prosser gives such examples as peering into windows and making persistent and unwanted phone calls. We express no opinion on the question of whether the unsolicited mailing of...