Earp v. City of Detroit

• Decision Date: 27 February 1969
• Docket Number: No. 1,Docket No. 5936,1
• Citation: 167 N.W.2d 841,16 Mich.App. 271
• Parties: Richard M. EARP, Plaintiff-Appellant, v. CITY OF DETROIT et al., Defendants, Michigan Bell Telephone Company, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 841

167 N.W.2d 841

16 Mich.App. 271

Richard M. EARP, Plaintiff-Appellant, v. CITY OF DETROIT et al., Defendants, Michigan Bell Telephone Company, Defendant-Appellee.

Docket No. 5936.

Court of Appeals of Michigan, Division No. 1.

Feb. 27, 1969.

Released for Publication May 29, 1969.

Robert E. Greenstein, Kelly, Greenstein & McCann, Livonia, for appellant.

A. H. Williams and John L. Vanker, Jr., Butzel, Eaman, Long, Gust & Kennedy, Alan R. Waterstone, Detroit, for appellee.

Before FITZGERALD, P.J., and BRONSON and R. B. BURNS, JJ.

BRONSON, Judge.

On July 16, 1963 plaintiff Richard Earp, a telephone installer employed by Michigan Bell Telephone Company, was interviewed by two detectives from the Criminal Intelligence Bureau of the City of Detroit Police Department. The interview was arranged by Michigan Bell and was in connection with an investigation being conducted by the police and Michigan Bell into alleged wiretapping operations. The interview took place at the Michigan Bell garage on St. Jean street in Detroit. When Earp requested the presence of either a Bell foreman or a union representative he was told that the interview was police business ¹ and had nothing to do with the telephone company or the union. Earp was further assured that any information he gave would be held in confidential report. The detectives were interested in obtaining any knowledge that Earp might have concerning a certain suspect who was a key figure in the investigation. During this interview Earp not only told of having installed phones on several occasions, he further stated that he had changed records and accepted 'money tips' for so doing (these latter contrary to company policy).

Immediately after the interview Earp went to see his supervisor Edwin Beck. Although there is some discrepancy as to the extent of their conversation (see Infra), it is clear that Earp told Beck that he had just had an interview with two police detectives, and that Beck told Earp that he would look into it and get back to Earp. On July 19, 1963, plaintiff was interviewed by Albert Langtry, staff supervisor in the special audit district of Michigan Bell. Mr. Beck was also present. At this meeting a copy of the confidential police report was shown to Earp. Plaintiff was then asked if the statements in the report were true and several corrections were made. Earp then 'voluntarily' signed a statement consisting of notes taken by Beck during the interview. The statement, in essence, admitted that Earp had had some involvement with an alleged bookie and had received 'money tips' from him.

Following the interview on July 19, 1963, Earp was suspended, and this suspension became permanent shortly thereafter.

Plaintiff unsuccessfully resorted to the grievance procedure under the union contract. He then filed this civil action. The gist of the action is that Michigan Bell Telephone Company illegally conspired with the Police Department to obtain confidential information given to the police by Earp, the giving and solicitation of which amounted to invasion of the right of privacy of appellant. From a partial summary judgment in favor of Michigan Bell of no cause of action granted in Wayne County Circuit Court, plaintiff Richard M. Earp appeals.

There is no civil action for conspiracy alone. Roche v. Blair (1943), 305 Mich. 608, 9 N.W.2d 861. It must be coupled with the commission of acts which damaged the plaintiff. Recovery may be had from parties on the theory of concerted action as long as the elements of the separate and actionable tort are properly proved. Scofield v. Clarke (1914), 179 Mich. 681, 146 N.W. 377. Thus, the outcome of this appeal rests upon a determination of whether or not the plaintiff stated a cause of action for the alleged invasion of privacy.

The right of privacy is defined as:

'* * * (T)he right of an individual to be let alone, or to live a life of seclusion, or to be free from unwarranted publicity, or to live without unwarranted interference by the public about matters with which the public is not necessarily concerned, or to be protected from any wrongful intrusion into an individual's private life which would outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities.' 77 C.J.S. Right of Privacy § 1, pp. 396, 397.

However, this right is not absolute.

'* * * In determining the extent of the right of privacy, it is essential to consider it in the light of duties imposed on individuals as citizens of a free country and in the light of an individual's relation to the community of which he is a member, and such right does not extend so far as to subvert those rights which spring from social conditions, including business relations, or to prohibit the publication of matter which is of public or general interest or benefit. * * *' 77 C.J.S. Right of Privacy § 3, p. 401.

Dean Prosser cites four forms of invasion of privacy--intrustion, disclosure, false light, and appropriation. The first two 'require the invasion of something secret, secluded or private pertaining to the plaintiff; the third and fourth do not.' However, while disclosure and false light depend on publicity, intrusion and appropriation do not. ² Of the four distinct forms of the tort, it seems that appellant is asserting either an 'intrusion' upon his privacy, which was committed when Michigan Bell sought out information concerning the appellant, or 'disclosure' of confidential information to a source not authorized by the appellant. In order for the 'intrusion' to be actionable it must be something which is objectionable to a reasonable man, ³ and the thing into which there is intrusion or prying must be private. Prosser, Torts (3d ed.), § 112, p. 833. If the charge is that there was 'disclosure', the disclosure must be made public, not private, and involve publicity. Prosser, Torts (3d ed.), § 112, p. 835.

Although there is a duty of the defendant to refrain from prying or intruding into plaintiff's private affairs, this duty is not absolute. (See Supra, 77 C.J.S. Right of Privacy § 3, p. 401.) In accord with the finding in Gill v. Curtis Pub. Co. (Cal.App.1951), 231 P.2d 565, 568, that 'every controversy (on invasion of privacy) must necessarily turn upon its own peculiar facts', we must very carefully examine the facts here present.

1) Detroit Police contacted Langtry (Michigan Bell) to investigate alleged wiretapping, ⁴

2) Langtry informed Beck,

3) Beck arranged the interview with Earp,

4) Earp notified Beck of his concern after the interview,

5) Beck notified Langtry,

6) Langtry met with Earp, at which time he had a copy of the 'confidential' police report.

There is some discrepancy as to what actually transpired when Earp went to Beck's office on July 16. Earp claims that he told Beck of the interview and asked why he was singled out by the police. Beck claims that Earp discussed the details of the interview including the admission by Earp of having accepted 'money tips'. Whichever testimony is accepted, it is clear that by July 16 Earp had disclosed to Michigan Bell that he had been interviewed by the Detroit Police Department (at the very least, in connection with alleged wiretapping). ⁵ Earp testified that when he went to Beck to find out why he had been interviewed, Beck replied, '(I)f I can find anything out for you, I'll get it back to you.'

Without reflecting on the duty owed to Earp by the Detroit Police Department, which is beyond the scope of this opinion, it is necessary to evaluate what obligation Michigan Bell had not to seek out or receive information from the police. Upon the record we can find no testimony that that establishes just how a copy of the 'confidential' report was obtained by Langtry. It is not clear whether there was an offer by the Police Department or an active searching out by Michigan Bell. It is a matter of fact to be ascertained whether the police were constructively notified of any waiver by Earp to Michigan Bell (indeed it is doubtful that Earp would want the police to divulge information to Bell that he had broken company rules). However, as to Bell there was knowledge of the interview. ⁶ Further, Earp's conversation with Beck sufficiently apprised Michigan Bell so as to warrant further investigation into the matter. ⁷ In Hawley v. Professional Credit Bureau, Inc. (1956), 345 Mich. 500, 76 N.W.2d 835, a letter was sent by defendant to plaintiff's employer notifying him of plaintiff's nonpayment of a debt. In Hawley the Supreme Court reversed the judgment for plaintiff. While dissenting from the outcome, Smith, J., acknowledges that there is not a freefloating tortious act in invasion of privacy.

'* * * The wrong depends not upon conduct otherwise tortious (I.e., trespass, defamation) nor does it turn upon breach of confidence, or truth or untruths, or an arithmetical measure of the numbers who witnessed the exposure, or the particular method thereof, whether by placard (Brents v. Morgan, Supra (221 Ky. 765, 299 S.W. 967, 55 A.L.R. 964)) or by letter (LaSalle Extension University v. Fogarty, Supra (126 Neb. 457, 253 N.W. 424, 91 A.L.R. 1491)). The wrong is done when the curtain of privacy is lifted.' Hawley v. Professional Credit Bureau, Inc., Supra, at 514, 76 N.W.2d at 841.

Thus, when Earp discussed the interview with Beck, in effect he helped to lift the curtain of privacy.

Plaintiff contends that the statement he signed at the close of his meeting with Langtry was not a waiver since it was apparent that Michigan Bell was already in receipt of the police report. This cannot be supported. First, there was the admission on July 16 to Beck. Second, there was the duty of Michigan Bell as Earp's employer to investigate the possibility that one of its employees had engaged in extra-legal activities utilizing its equipment. That no warrant was issued against Earp had nothing to do with Michigan Bell's investigation. ⁸ Earp did not have to tell of the 'tips' he...