Haines v. Public Finance Corp.

• Decision Date: 27 July 1966
• Parties: , 36 O.O.2d 198 HAINES, Appellee, v. PUBLIC FINANCE CORP., Appellant, et al.
• Court: Ohio Court of Appeals

Page 89

7 Ohio App.2d 89

218 N.E.2d 727, 36 O.O.2d 198

HAINES, Appellee, v. PUBLIC FINANCE CORP., Appellant, et al.

Court of Appeals of Ohio, Ninth District, Summit County.

July 27, 1966.

Robert L. Culbertson, Akron, for appellee.

Buckingham, Doolittle & Burroughs and Duane Morris, Akron, for appellant.

HUNSICKER, Judge.

An appeal on questions of law has been lodged in this court from an order denying a final judgment to the Public Finance Corporation (appellant herein) notwithstanding the failure of the jury to agree upon a verdict.

An action was instituted by Ada Marie Haines (appellee here) against the Public Finance Corporation (hereinafter called Finance Company) claiming personal injury as a result of an invasion of the right of privacy. Testimony in chief was introduced to show that someone called her by telephone, giving the name of James Arnold, claiming to be an employee of the Finance Company, and asking her why she did not pay a debt owed to them. These calls, she claims, were very numerous and were made at all hours of the day and on every day of the week, except Sunday. Mrs. Haines said the continuous repetition of such calls caused her to become nervous, ill and unable to work. She also said she had, as a result of this conduct, filed a petition in bankruptcy.

At the conclusion of the plaintiff's case, counsel for the Finance Company made a motion for judgment claiming that Mrs. Haines had failed to show that whatever telephone calls she claimed to have received were made by a duly authorized agent of the Finance Company. After amendment of its answer, the Finance Company asked the court to dismiss the petition because, by reason of the filing of her bankruptcy petition, Mrs. Haines no longer could prosecute the action. The motion to dismiss the petition was overrulecd, and the Finance Company introduced its evidence wherein James Aiken, manager of the Finance Company, denied that a James Arnold ever was an employee of that company. There was evidence, by way of rebuttal, to show that James Aiken told the deputy sheriff who served the summons that James Arnold no longer worked for that company.

Counsel for Mrs. Haines also testified he called the Finance Company about the Haines debt, and talked to a man, who identified himself as James Arnold, about such a debt; and later called the Finance Company again to speak to Mr. Arnold and was told he was no longer employed there.

While the testimony on direct examination may have been insufficient to support a judgment, nevertheless, when a defense was interposed by the examination of witnesses, along with the resultant rebuttal testimony, the full force of the rule set out in the case of Halkias v. Wilkoff Co., 141 Ohio St. 139, 47 N.E.2d 199, came into being. Public Finance Corporation was not entitled to a judgment notwithstanding the failure of the jury to agree upon a verdict.

The next matter to which we direct our attention is whether Mrs. Haines, after a petition in bankruptcy was filed by her prior to the trial of this action, is the owner of the claim she asserted against the Finance Company. The appellant Finance Company says that under Section 70 of the Bankruptcy Act (Section 110, Title 11, U.S. Code), the trustee in bankruptcy is the only one who can prosecute the action to recover for the claimed injury Mrs. Haines says she sustained.

It is not necessary to set out verbatim herein Section 70 of the Bankruptcy Act. It is sufficient to point out that the Act vests in the trustee in bankruptcy all property of the bankrupt, including rights of action which, prior to the filing of the petition in bankruptcy, could, by any means, have...