Hines v. Columbus Bank & Trust Co.

• Decision Date: 16 January 1976
• Docket Number: No. 51036,51036
• Citation: 223 S.E.2d 468,137 Ga.App. 268
• Parties: J. T. HINES v. COLUMBUS BANK AND TRUST COMPANY et al.
• Court: Georgia Court of Appeals

Page 468

223 S.E.2d 468

137 Ga.App. 268

J. T. HINES v. COLUMBUS BANK AND TRUST COMPANY et al.

No. 51036.

Court of Appeals of Georgia.

Jan. 16, 1976.

Henry L. Crisp, James C. Gatewood, Americus, for appellant.

Hatcher, Stubbs, Land, Hollis & Rothschild, Albert W. Stubbs, Page, Scranton, Harris, McGlamry & Chapman, W. W. Page, Columbus, for appellees.

CLARK, Judge.

Should we extend the 'right of privacy doctrine' to create a cause of action on the basis of a single inquiry letter by a bank addressed to an American Embassy in a foreign nation requesting business information concerning a United States citizen located in that country? Law, logic, and the practicalities of modern commerce require a negative answer.

Plaintiff Hines sued the Columbus Bank and Trust Company and its employee upon a letter written in behalf of the bank to the American Ambassador at Costa Rica. The complaint stated that 'Plaintiff was not a customer of the defendant bank, owed no money to either defendant and had no business with either defendant.' (R. 48). Apparently the letter was written as a service by the bank to one of its customers. The queries submitted were: 'a. Has Mr. James T. Hines applied for or has he obtained Costa Rica citizenship? b. Confirm that Mr. Hines is general manager of Taylor and Associates of Costa Rica, Inc., and his approximate annual salary. c. Amount of stock that Mr. Hines owns in this corporation and approximate value. d. His connection with and interest in other business enterprise in Costa Rica. e. If Educators Investment Association of Georgia, Inc. owned or owns any interest in Taylor and Associates of Costa Rica, Inc. f. Whether or not Taylor and Associates of Costa Rica, Inc. is a Costa Rica or Panamanian corporation.' (R. 6-7).

The trial court sustained motions to dismiss by defendants. This appeal is from that judgment.

Recognition of a legally enforceable right of privacy occurred for the first time in American courts in 1905. Georgia lawyers take pride in the fact that this court-created right ¹ was the result of a brilliant opinion by Justice Andrew J. Cobb in Pavesich v. New England Life Ins. Co., 122 Ga. 190 50 S.E. 68. The dimensions of that precious right have since been delineated in many decisions. These subsequent cases up to 1966 were collected and discussed in Cabaniss v. Hipsley, 114 Ga.App. 367, 370, 151 S.E.2d 496, 500. There Judge Eberhardt adopted the so-called 'Four Tort Rule' which had been suggested by Dean Prosser in his article entitled 'Privacy' appearing in 48 Calif.L.Rev. 383 (1960). Judge Eberhardt reviewed the various right of privacy cases under the heading of each of the four categories which were described briefly as: '(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; (4) appropriation, for the defendant's advantage, of the plaintiff's name or likeness.'

The only category relevant to the instant case is the first classification, namely, that of intrusion into private affairs. A study of the nine cases cited on page 371, 151 S.E.2d 496 by Judge Eberhardt leads to the conclusion that under this theory 'the Georgia cases require that the intrusion must be physical, analogous to a trespass.' Peacock v. Retail Credit Co., 302 F.Supp. 418, 422 (N.D.Ga.1969).

Appellant seeks to extend the right of privacy beyond its present limitations. Since we are dealing with a judge-made tort it is necessary for us to decide if the facts of the case at bar warrant such extension. In making our decision we balance the precious 'right-to-be-let-alone' which is desired by everyone as against the necessities of commerce. When put on the scales it is apparent that the courts should not interfere with the established business practice whereby inquiries are made to get information concerning activities, reputation, and financial responsibility-provided it is sought legitimately and not for a malevolent purpose. Everyone in our work-a-day world recognizes the importance to commerce of this kind of information.

Georgia's appellate courts have recognized the need for pragmatism in deciding the extent to which the right of privacy should be protected. Thus, in Gouldman-Taber Pontiac, Inc. v. Zerbst, 213 Ga. 682, 100 S.E.2d 881, where the Supreme Court ruled there was no infringement of privacy in the writing of a letter by a creditor to the debtor's employer asking assistance in collecting a debt, the court said (p. 684, 100 S.E.2d p. 883), 'The right of privacy is not absolute but is qualified by the rights of others. 'No individual can live in an ivory tower and at the same time participate in society and expect complete non-interference from other members of the public. " Similarly, in Davis v. General Finance &c. Corp., 80 Ga.App. 708, 57 S.E.2d 225, when holding that a dunning telegram on a debt that was not owed did not state a cause of action for breach of the right of privacy, our court said: 'This right to sue for a violation of the right of privacy is one of recent origin and has been very much restricted from the beginning. Brandeis and Warren, in their article in the Harvard Law Review, supra, stated that 'it is only the flagrant breaches of decency and propriety that could in practice be reached'. They also recognized that it was often difficult to determine where the individual's liberty ended and the rights of society began.' (P. 710, 57 S.E.2d p. 227). Our court then added: 'There is still another reason, (and there may be more), and that is that the protection afforded by the law to the right of privacy must be restricted to 'ordinary sensibilities' and not to super-sensitiveness or agoraphobia. 41 Am.Jur. § 12, p. 934-35. There are some shocks, inconveniences and annoyances which members of society in the nature of things must absorb without the right of redress.' (P. 711, 57 S.E.2d p. 227).

Since the defendant bank's letter to the Embassy indicates interest in obtaining the desired information relative to a pending United States District Court case, we deem it appropriate to quote from the most recent case on this subject: 'Reasonable surveillance is recognized as a common method to obtain evidence to defend a lawsuit. It is only when such is conducted in a vicious or malicious manner not reasonably limited and designated to obtain information needed for the defense of a lawsuit or deliberately calculated to frighten or torment the plaintiff, that the courts will not countenance it.' Ellenberg v. Pinkerton's, Inc., 130 Ga.App. 254, 257, 202 S.E.2d 701, 704.

An examination of the six questions propounded in the letter does not reveal any evil motive. With the exception of the first question seeking to know if the plaintiff had applied for or obtained citizenship in Costa Rica the other questions deal specifically with normal business inquiries. Questions concerning job, salary, and business connections convey no sinister implication; nor do they by inference or innuendo reflect unfavorably upon the plaintiff.

The single letter of business inquiry by the bank to an official did not constitute an unwarranted or unreasonable interference with the plaintiff's right of privacy.

In view of this ruling it is unnecessary for us to consider whether it is the duty of the plaintiff to plead and prove the law of Costa Rica.

Judgment affirmed.

BELL, C.J., DEEN, P.J., and STOLZ, WEBB and MARSHALL, JJ., concur.

PANNELL, P.J., and QUILLIAN, and EVANS, JJ., dissent.

EVANS, J., dissents with supplemental opinion.

QUILLIAN, Judge (dissenting).

The facts of this case, succinctly stated, are as follows.

Plaintiff brought suit in Muscogee Superior Court for invasion of privacy. The complaint alleged: that the defendants invaded his privacy by the preparation and dispatch of a certain letter by defendant Hamner, as agent of the defendant Columbus Bank and Trust Company, to the U.S. Embassy in San Jose, Costa Rica, inquiring into the private affairs of plaintiff to which defendants had no right nor valid interest. It was then alleged that this letter was received and acted upon by those associated with the Embassy; that 'as a result of said letter and inquiries by defendants, plaintiff was subjected to embarrassing questions from his business associates and superiors and his job was and is jeopardized'; that as a result plaintiff suffered great embarrassment, fright and mental anguish and fear of harm. The complaint further alleged 'that the activities described herein on the part of the defendants constituted an invasion of plaintiff's privacy which was unlawful, intentional, malicious, in bad faith and without good cause or reason and which disturbed and injured the peace, happiness and feelings of plaintiff'; that 'at all times mentioned herein plaintiff was not a customer of the defendant Bank, owed no money to either defendant and had no business with either defendant.' Plaintiff alleged general damages in the amount of Ten Thousand Dollars and One Hundred Thousand Dollars punitive damages, and prayed for judgment jointly and severally therefor.

The defendants in separate answers denied the material allegations of the complaint and by motion set forth six grounds to dismiss the complaint. The defendants then sought a judgment on the pleadings. After a hearing on the motion to dismiss, the trial judge dismissed the plaintiff's complaint with prejudice as to each defendant. Appeal was taken from these judgments.

The majority opinion states that the question here is 'should we extend...