Hamberger v. Eastman

• Decision Date: 27 January 1965
• Citation: 106 N.H. 107,206 A.2d 239
• Parties: , 11 A.L.R.3d 1288 Carl H. HAMBERGER et al. v. Clifford C. EASTMAN.
• Court: New Hampshire Supreme Court

Page 239

206 A.2d 239

106 N.H. 107, 11 A.L.R.3d 1288

Carl H. HAMBERGER et al. v. Clifford C. EASTMAN.

Supreme Court of New Hampshire.

Argued Oct. 6, 1964.

Decided Dec. 30, 1964.

Rehearing Denied Jan. 27, 1965.

Peter Makris, Laconia, for plaintiffs.

Nighswander, Lord & Bownes and Conrad E. Snow, Laconia, for defendant.

KENISON, Chief Justice.

The question presented is whether the right of privacy is recognized in this state. There is no controlling statute and no previous decision in this jurisdiction which decides the question. Inasmuch as invasion of the right of privacy is not a single tort but consists of four distinct torts, it is probably more concrete and accurate to state the issue in the present case to be whether this state recognizes that intrusion upon one's physical and mental solitude or seclusion is a tort. The most recent, as well as the most comprehensive, analysis of the problem is found in Prosser, Torts, s. 112 (3d ed. 1964).

In capsule summary the invasion of the right of privacy developed as an independent and distinct tort from the classic and famous article by Warren and Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193 (1890), although Judge Cooley had discussed 'the right to be let alone' some years previously. Cooley, Torts 29 (1st ed. 1879). In 1902 the New York Court of Appeals decided that the right of privacy did not have 'an abiding place in our jurisprudence.' Robertson v. Rochester Folding Box Co., 171 N.Y. 538, 556, 64 N.E. 442. The following year the New York Legislature acted promptly to remedy this deficiency. Laws of N.Y. 1903 ch. 132; N.Y. Civil Rights Law, McKinney's Consol.Laws, c. 6, §§ 50 and 51. Shortly thereafter in 1905 Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68 upheld the right of privacy and became the leading case on the subject. Since that time the right of privacy has been given protection in a majority of the jurisdictions in this country, generally without benefit of statute, and only a small minority have rejected the concept and some of these minority decisions are not recent. See Henry v. Cherry & Webb, 30 R.I. 13, 73 A. 97 (1909). See also 1 Harper and James, Torts ss. 9.5-9.7 (1956); Annots. 138 A.L.R. 22, 168 A.L.R. 446, 14 A.L.R.2d 750. 'Today, with something over three hundred cases in the books, some rather definite conclusions are possible. What has emerged is no very simple matter. It is not one tort, but a complex of four. The law of privacy comprises four distinct kinds of invasion of four different interests of the plaintiff which are tied together by the common name, but otherwise have almost nothing in common except that each presents an interference with the right of the plaintiff 'to be let alone." Prosser, Torts, s. 112, p. 832 (3d ed. 1964).

The four kinds of invasion comprising the law of privacy include: (1) intrusion upon the plaintiff's physical and mental solitude or seclusion; (2) public disclosure of private facts; (3) publicity which places the plaintiff in a false light in the public eye; (4) appropriation, for the defendant's benefit or advantage, of the plaintiff's name or likeness. In the present case, we are concerned only with the tort of intrusion upon the plaintiffs' solitude or seclusion. See Ezer, Intrusion on Solitude: Herein of Civil Rights and Civil Wrongs, 21 Law in Transition 63 (1961).

'It is evident that these four forms of invasion of privacy are distinct, and based on different elements. It is the failure to recognize this which has been responsible for much of the apparent confusion in the decisions. Taking them in order--intrusion, disclosure, false light, and appropriation--the first and second require the invasion of something secret, secluded or private pertaining to the plaintiff; the third and fourth do not. The second and third depend upon publicity, while the first does not, nor does the fourth, although it usually involves it. The third requires falsity or fiction; the other three do not. The fourth involves a use for the defendant's advantage, which is not true of the rest.' Prosser, Torts s. 112 p. 842-843 (3d ed. 1964).

The tort of intrusion upon the plaintiff's solitude or seclusion is not limited to a physical invasion of his home or his room or his quarters. As Prosser points out, the principle has been carried beyond such physical intrusion 'and extended to eavesdropping upon private conversations by means of wire tapping and microphones.' Prosser, supra, p. 833. Examples of wire tapping in which the right of privacy has been protected as an invasion of the plaintiff's solitude or seclusion are Rhodes v. Graham, 238 Ky. 225, 37 S.W.2d 46; LaCrone v. Ohio Bell Telephone Co., 114 Ohio App. 299, 182 N.E.2d 15 and LeCrone v. Ohio Bell Telephone Co., 120 Ohio App. 129, 201 N.E.2d 533, decided September 10, 1963 but not reported until 1964. The right of privacy has been upheld in situations where microphones have been planted to overhear private conversations. Roach v. Harper, 143 W.Va. 869, 105 S.E.2d 564; McDaniel v. Atlanta Coca-Cola Bottling Co., 60 Ga.App. 92, 2 S.E.2d 810.

We have not searched for cases where the bedroom of husband and wife has been 'bugged' but it should not be necessary--by way of understatement--to observe that this is the type of intrusion that would be offensive to any person of ordinary sensibilities. What married 'people do in the privacy of their bedroom is their own business so long as they are not hurting anyone else.' Ernst and Loth, For Better or...