Gonzales v. Southwestern Bell Tel. Co.

• Decision Date: 31 August 1977
• Docket Number: No. 1155,1155
• Parties: Abram GONZALES and Modesta Gonzales, Appellants, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 219

555 S.W.2d 219

Abram GONZALES and Modesta Gonzales, Appellants, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellee.

No. 1155.

Court of Civil Appeals of Texas, Corpus Christi.

Aug. 31, 1977.

Rehearing Denied Sept. 15, 1977.

Anthony F. Constant, Corpus Christi, for appellants.

H. K. Howard, Dyer, Redford, Burnett, Wray & Woolsey, Corpus Christi, for appellee.

OPINION

NYE, Chief Justice.

This is an invasion of privacy action. Trial was to a jury which answered special issues in favor of the plaintiffs. The trial court, however, granted the defendant's motion for judgment non obstante veredicto and entered a take nothing judgment favoring the defendant telephone company. The plaintiffs have perfected their appeal to this Court.

The controversy arose initially when the plaintiffs refused to put up an additional $50.00 deposit for the two phones they had in their residence. After several attempts by the telephone company to obtain the deposit, the company informed the plaintiffs that their telephone service was being disconnected. A Mike Johnson, an employee of the telephone company, went to the plaintiffs' home to remove the telephones. Since no one was present at the plaintiffs' home, Johnson opened the screen door, a solid wooden door and proceeded into the hallway where he removed the first telephone. He then went to plaintiffs' bedroom where he cut the telephone cord and removed the second telephone. Mrs. Gonzales testified that the screen door to here home had been locked but was broken and that mud was tracked into the house when she returned home. Johnson, the telephone company employee's testimony was different from that of Mrs. Gonzales. He testified that he thought he had permission to enter the house. He stated that he did not look for or ring a door bell because it was his experience that door bells were generally not in working order. He said that the doors were unlocked, that he announced, while inside the house, who he was and for what purpose he was there. He said no one answered. He stated that he did not remove any other objects except the telephones, nor did he view any personal matters belonging to the plaintiffs. Johnson testified that after disconnecting the phones, he left, locking the front door behind him. He testified that he was in the house approximately three minutes.

The first person to discover that the telephone company had in fact entered into the Gonzales' home was their daughter, Socorro. She testified that when she came home from school she noticed that the screen door was broken and mud was tracked on the carpet inside the house. Mrs. Gonzales called the police department who suggested she contact the telephone company. Mrs. Gonzales contacted the company but was informed that she could not get any information before the following Tuesday. On that day Mrs. Gonzales contacted a Mr. Hogan who was a supervisor for the telephone company. Hogan set up an appointment to met Mrs. Gonzales at her home and to discuss the problem. Hogan testified at the trial that it was the policy of Southwestern Bell to make no entry into a house without authority. According to Mr. Hogan Mrs. Gonzales asked him by what authority her house had been entered. Hogan replied that he would check it out, get information, and come by Mrs. Gonzales' home to look at the damage to the screen door and carpet. Hogan testified that when he went to the Gonzales' house, he observed that the screen door was not locked. He traced the service order calling for the removal of the telephone equipment to their employee Johnson.

The case was submitted on the basis of an invasion of privacy and for damages for mental anguish to Mr. and Mrs. Gonzales. In response to the special issues submitted, the jury found:

1) that Johnson, the telephone company's employee, entered the plaintiffs' home without consent, either expressed or implied 2) that Johnson's entry into the plaintiffs' home was done with the intent to deprive the plaintiffs of the private use of their home.

3) that the telephone company should have foreseen that the entry into the plaintiffs' home would result in injuries to the plaintiffs;

4) that the telephone company's employee's entry into the plaintiffs' home was a proximate cause of the mental anguish suffered by Mr. and Mrs. Gonzales, the plaintiffs;

5) that the telephone company's employee's entry into the plaintiffs' home was not at a reasonable hour; and

6) that Mr. and Mrs. Gonzales each suffered $1800.00 in damages for mental anguish.

After the jury had returned its findings and in response to the telephone company's motion for judgment n. o. v. the trial court entered a take nothing judgment against the plaintiffs.

The plaintiffs' points of error on appeal are that the trial court erred in granting judgment n. o. v. because a wrongful intentional invasion into plaintiffs' home does constitute the tort of invasion of privacy and that there was sufficient evidence to support each of the special issues submitted by the jury.

The appellee telephone company contends in effect that there is no cause of action in Texas for invasion of privacy resulting from an entry into a person's home, especially when the person is not present. Additionally, the company attacks each of the special issues, including the damage issues, with no evidence and insufficient evidence points, and in addition they attack the damage issues as being against the greater weight and preponderance of the evidence and excessive.

Prosser has divided invasion of privacy into a complex of four torts tied together by a common name. See W. Prosser, Handbook of the Law of Torts § 117 (4th ed. 1971); Prosser, Privacy, 48 Calif.L.Rev. 383 (1960). These four torts are: 1) Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs; 2) Public disclosure of embarrassing private facts about the plaintiff; 3) Publicity which places the plaintiff in a false light in the public eye; and 4) Appropriation, for the defendant's advantage, of the plaintiff's name or likeness. See Ind. Foundation, etc. v. Texas Ind. Acc. Bd., 540 S.W.2d 668 (Tex.Sup.1976).

The only form of the four torts of invasion of privacy that is involved in this appeal is that of intrusion upon the property of the plaintiffs. This cause of action is an intentional tort analogous to trespass and battery in the protection of personal integrity. See McCormick v. Haley, 37 Ohio App.2d 73, 307 N.E.2d 34 (1973), quoting LeCrone v. Ohio Bell Telephone Co., 120 Ohio App. 129, 201 N.E.2d 533 (1963). It includes not only physical invasion of a person's property, but also eavesdropping upon private conversations by wiretapping, microphones or spying into windows of a home. See Walker v. Whittle, 83 Ga.App. 445, 64 S.E.2d 87 (1951); McDaniel v. Atlanta Coca-Cola Bottling Co., 60 Ga.App. 92, 2 S.E.2d 810 (1939); Pritchett v. Board of Commissioners, 42 Ind.App. 3, 85 N.E. 32 (1908); Souder v. Pendleton Detectives, 88 So.2d 716 (La.App.1956); Welsh v. Pritchard, 125 Mont. 517, 241 P.2d 816 (1952); Moore v. New York Elevated R. R., 130 N.Y. 523, 29 N.E. 997 (1892); Sutherland v. Kroger Co., 144 W.Va. 673, 110 S.E.2d 716 (1959); Roach v. Harper, 143 W.Va. 869, 105 S.E.2d 564 (1958). The Restatement of Torts § 867 also recognizes a cause of action base on the right of privacy.

In Texas, the supreme court in the case of Billings v. Atkinson, 489 S.W.2d 858 (Tex.Sup.1973) recognized for the first time the invasion of privacy as an actionable legal claim. The court summarized and said that: ". . . we follow the rule that an unwarranted invasion of the right of privacy constitutes a legal injury for which a remedy will be granted." The court also noted that proof of actual damages is not necessary to a recovery. "Damages for mental suffering are recoverable without the necessity of showing actual physical injury in a case of willful invasion of the right of privacy because the injury is essentially mental and subjective, not actual harm done 'to the plaintiffs' body.' " (citing authorities).

The submission of the subject case to the jury follows essentially the same type of submission as in the Billings case, supra. The appellee does not, by counterpoints or cross-points or error, complain of any of the special issues or the way in which the case was submitted to the jury.

The jury chose not to believe the telephone company's employee, Johnson. Johnson invaded the plaintiffs' home without their permission. There is no question that the telephone company's employee saw whatever there was to see in the plaintiffs' bedroom and the other areas of their home. Whatever there was to see was the private property of the plaintiffs. This invasion of privacy by the telephone company's employee into plaintiffs' home was ". . . a willful tort which constitutes a legal injury." Billings v. Atkinson, supra, at pg. 861. We hold that the trial court erred in entering a...