Froelich v. Werbin, 47919
| Decision Date | 10 April 1976 |
| Docket Number | No. 47919,47919 |
| Citation | 219 Kan. 461,548 P.2d 482 |
| Parties | William FROELICH, Appellant, v. Syd WERBIN, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. 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 invasion of his privacy, if the intrusion would be highly offensive to a reasonable man.
2. There is no liability for intrusion upon seclusion unless interference with the plaintiff's seclusion is a substantial one, of a kind that would be highly offensive to the ordinary reasonable man, as the result of conduct to which the reasonable man would strongly object.
3. On the basis of the factual circumstances as fully set forth in the opinion it is held that the evidence was insufficient as a matter of law to establish an invasion of the plaintiff's right of privacy and the district court did not err in directing a verdict in favor of the defendant.
Jim Lawing, Wichita, argued the cause, and was on the brief for appellant.
Robert W. Kaplan, of Kaplan, McMillan & Anderson, Wichita, argued the cause, and was on the brief for appellee.
This is an action to recover damages for an alleged invasion of plaintiff's privacy. The plaintiff-appellant is William Froelich. The defendant-appellee is Syd Werbin. The plaintiff's claim for invasion of his privacy arose in October 1969 while plaintiff was a patient at St. Francis Hospital in Wichita. The theory of the plaintiff's case is that the defendant Werbin caused plaintiff's privacy to be intruded upon by hiring a hospital orderly, Dan Marlett, to enter plaintiff's hospital room to obtain samples of plaintiff's hair without plaintiff's knowledge or consent. Plaintiff claims to have suffered mental distress and injury as a result of this intrusion on his seclusion. This case was before the court in Froelich v. Werbin, 212 Kan. 119, 509 P.2d 1118. It involved an appeal from an order of the district court dismissing the case on the grounds of res judicata and failure to join a 'contingently necessary' party. We reversed the judgment of dismissal and remanded the case to the district court. The merits of plaintiff's claim were not considered.
A companion case involving the same alleged invasion of privacy was considered by the court in Froelich v. Adair, 213 Kan. 357, 516 P.2d 993. We reversed that case for the reason that the district court failed to make findings of controlling facts as required by K.S.A. 60-252(a). We held specifically that whether or not plaintiff had a cause of action under the law applicable to intrustion upon seclusion must await the determination of the facts of the case on a new trial.
In Froelich v. Adair, supra, we set forth briefly the factual circumstances claimed by plaintiff as the basis for invasion of his privacy. They are as follows: Burneta Adair's former husband, Tom Hamilton, had previously sued her seeking to recover a million dollars for defamation because she had stated he was homosexual and William Froelich was his lover. Truth is a defense to an action for defamation and Mrs. Adair was interested in obtaining evidence from William Froelich as to the truth of her statements. Syd Werbin, deputy sheriff and a friend of Mrs. Adair, informed her that Froelich had become ill and was at St. Francis Hospital. Mrs. Adair then became alarmed that he might not be able to testify in the defamation action. She had previously obtained hair from her former husband's bed and underclothing and had it analyzed, and she suggested in her conversation with Werbin it would be a good idea to get samples of Froelich's hair for analysis and comparison. Werbin paid an orderly who obtained combings from Froelich's hairbrush and a discarded adhesive danage to which Froelich's discarded adhesive bandage to which Froelich's these on to Mrs. Adair and she had them analyzed. During a deposition session with Hamilton's attorneys, she let it be known she had the samples of Froelich's hair obtained from his hospital room. Although he had not been aware of the taking of his hair samples at the time they were taken, when he later learned of the intrusion he claimed he was emotionally upset over the alleged invasion of his privacy and brought suit against both Mrs. Adair and Syd Werbin in separate actions.
Following the reversal in the first appeal in this case in May of 1973, the district court set Froelich's action against Werbin for trial by jury on March 11, 1974. On the morning of the trial plaintiff's, counsel discovered that plaintiff was confined to the hospital. The trial proceeded in his absence after assurances from plaintiff's counsel that plaintiff would be present. By the start of the second day of trial it became clear to all that the plaintiff would not be able to appear at the trial. The plaintiff, William Froelich, never appeared in court or testified in his own behalf. The plaintiff did not call to testify in person either the defendant, Syd Werbin, or the hospital orderly, Dan Marlett. The only evidence presented by the plaintiff on the issue of defendant's liability for invasion of privacy was the discovery deposition of the defendant Werbin which was read to the jury over defendant's objections. The only other testimony presented by the plaintiff was on the issue of plaintiff's damages. To prove his damages the plaintiff called to the witness stand Burneta Adair, Dr. Harold McNamara, the plaintiff's psychologist, and Crysta Christmann, a business associate. As could be expected the trial record is full of objections to evidence, some of which were sustained and some of which were overruled. On the second day of the trial the plaintiff rested his case. The trial court sustained the defendant's motion for a directed verdict. The plaintiff Froelich has appealed to this court claiming a number of trial errors.
In sustaining the defendant Werbin's motion for a directed verdict the trial court found that as a matter of law the plaintiff had failed to make out a prima facie case of invasion of privacy sufficient to raise a jury question. It held that as a matter of law there was no intrusion on the seclusion of the...
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