Holloway v. Davis

• Decision Date: 19 December 1967
• Docket Number: 3 Div. 219
• Citation: 208 So.2d 794,44 Ala.App. 346
• Parties: J. Malcolm HOLLOWAY, Jr., et al., d/b/a The Credit Repdorting Co., v. George L. DAVIS.
• Court: Alabama Court of Appeals

Page 794

208 So.2d 794

44 Ala.App. 346

J. Malcolm HOLLOWAY, Jr., et al., d/b/a The Credit Repdorting Co., v. George L. DAVIS.

3 Div. 219.

Court of Appeals of Alabama.

Dec. 19, 1967.

Rehearing Denied Jan. 16, 1968.

Whitesell & Alton, Montgomery, for appellants.

Azar, Campbell & Azar, Montgomery, for appellee.

PRICE, Presiding Judge.

Plaintiff filed suit against the defendants to recover damages for an invasion to his right of privacy. The case was tried to a jury resulting in a verdict of $750.00. Defendants appeal.

The complaint, as amended, alleged:

'The Plaintiff claims of the defendants the sum of $5,000.00 as damages for that heretofore during the period from to-wit: August 22, 1964 to to-wit: June 27, 1965, the defendants, J. Malcolm Holloway, Jr. and J. Malcolm Holloway, III, individually and doing business as The Credit Reporting Company although not being regularly licensed attorneys, were engaged in Montgomery, Alabama, in the business of attempting to collect on behalf of clients, for whom they were not employees in the ordinary sense defaulted debts allegedly owed by various persons to the said clients, and during said period the defendants, J. Malcolm Holloway, Jr. and J. Malcolm Holloway, III, individually and doing business as The Credit Reporting Company, and defendant, Carrie Nae Ables, the agent, servant, or employee of defendants, J. Malcolm Holloway, Jr. and J. Malcolm Holloway, III, individually and doing business as the Credit Reporting Company, while acting within the line and scope of her employment with said defendants, though none were regularly licensed attorneys nor employees of Jackson Hospital in the ordinary sense, were engaged in attempting to collect on behalf of said Jackson Hospital, a certain indebtedness allegedly defaulted and owed to said Jackson Hospital, by plaintiff. Plaintiff alleges that said defendants not being regularly licensed attorneys nor employees of said Jackson Hospital in the ordinary sense their efforts and activities and undertakings in attempting to collect said defaulted indebtedness allegedly owed by plaintiff to said Jackson Hospital constituted the unlawful and illegal practice of law by said defendants and were acts and undertakings contrary to law and in violation of law.

'The plaintiff further avers that the defendants in the course of their said wrongful, illegal and unlawful efforts to collect said alleged defaulted indebtedness by the plaintiff to said Jackson Hospital, as aforesaid, did intentionally, maliciously, unreasonably, illegally, unlawfully, and wrongfully engage in a course of harassment, intimidation, and threats to the plaintiff by said defendants by their sending threatening, intimidating, harassing, unlawful, and wrongful notices and other written materials to the plaintiff through the mails, and by threatening, intimidating, harassing, unlawful, and wrongful telephone calls and other oral messages sent to the plaintiff through plaintiff's wife, and plaintiff further avers that the defendants did thereby engage in an unlawful and a systematic campaign of harassment, intimidation, and threats to the plaintiff, as aforesaid, in an effort to wrongfully and unlawfully humiliate and wrongfully coerce the plaintiff into paying said alleged indebtedness due said Jackson Hospital, as aforesaid.

'The plaintiff further avers that said defendants in said unlawful, wrongful and systematic campaign of harassment, intimidation and threats to the plaintiff threatened to cause plaintiff to suffer demotion in his employment and did illegally, intentionally, with malice, and without just cause contact by telephone the plaintiff's employer and did inform said employer that plaintiff owed said alleged debt and that plaintiff was willfully failing and refusing to pay his just debts, all in an effort to humiliate, coerce, and intimidate the plaintiff into paying said alleged indebtedness and to cause plaintiff to suffer embarrassment and possible demotion with his employer.

'The plaintiff further avers that said unlawful, wrongful and systematic campaign of harassment, intimidation, coercion, and threats by the defendants in the sending of threatening and intimidating notices and other written materials to the plaintiff through the mails and by telephone calls and other oral messages to the plaintiff, directly and through his wife and employer, and the personal contacting of plaintiff's wife and plaintiff's employer by defendants was intentional, malicious, illegal, wrongful, and specifically designed and intended to humiliate and embarrass plaintiff, and constituted unwarranted publicity of plaintiff's private affairs and constituted the wrongful intrusion by defendants into plaintiff's private affairs and activities in such manners as to outrage plaintiff and to cause mental suffering, shame or humiliation to a person of ordinary sensibilities, and was an unlawful and wrongful invasion by defendants of plaintiff's right of privacy.

'The plaintiff further avers that said wrongful, threatening and intimidating letters, notices, and threats of actions to be taken by the defendants against the plaintiff, and the wrongful, threatening, and intimidating phone calls and other oral messages sent to the plaintiff through plaintiff's wife and plaintiff's employer, and the defendants' wrongful, illegal and unwarranted contact of plaintiff's employer and defendants' wrongful, illegal and unwarranted giving of publicity of plaintiff's private affairs and activities in such a manner as to outrage plaintiff and to cause mental suffering, shame or humiliation to a person of ordinary sensibilities, did violate plaintiff's right of privacy and constituted illegal, unreasonable, and unlawful force and threats by defendants in their unlawful, illegal, unreasonable, and unwarranted efforts in attempting to force and coerce plaintiff into paying said alleged indebtedness to said Jackson Hospital and plaintiff further avers that as a proximate result and consequence thereof plaintiff has been caused unreasonable and unwarranted publicity and notoriety among his family, coworkers and employers over said alleged indebtedness and his private affairs and activities, and has been caused to suffer nervousness, humiliation, embarrassment and outrage, for all of which plaintiff claims damages, hence this suit.'

Defendants filed motion to strike, as follows:

'Comes now the Defendants and move the Court to strike from the body of the complaint, as amended, the following:

'In lines six, 'although not being regularly licensed attorneys,' in line 17, 'though none were regularly licensed attorneys,' in line 22, 'defendants not being regularly licensed attorneys,' in line 27, 'constituted the unlawful and illegal practice of law by said defendants and were acts and undertakings contrary to law and in violation of law.'

'And as grounds for said motion say as follows:

'1. That the complained of words are unnecessary in stating a cause of action for invasion of right of privacy.

'2. That said words are superfluous and prolix in a cause of action for invasion of right of privacy and injure the defendants in creating prejudice and bias against them.

'3. That said words charge the defendants in fact with the commission of a criminal offense when there is not allegation of arrest or warrant or determination of same in any court.

'4. That said words are injurious to the defendants in that they charge defendants with the commission of a crime and seek to try the defendants civilly for what is purported to be a criminal act.

'5. That said words create bias and prejudice against the defendants incharging them with the commission of a crime and if allowed to remain in the complaint evidence may be adduced to try defendants in a civil court for what is alleged to be a criminal charge and thus deprive the defendants of rights granted to them by the constitution fo the State of Alabama and the United States.'

The first assignment of error is that the trial court erred in denying the motion to strike. It is insisted that the allegations sought to be striken are unnecessary to state a cause of action; that their tendency was to create bias and...