Housh v. Peth

• Decision Date: 06 April 1955
• Citation: 99 Ohio App. 485,135 N.E.2d 440
• Parties: , 59 O.O. 330 HOUSH, Appellee, v. PETH, Appellant, et al.
• Court: Ohio Court of Appeals

Page 485

99 Ohio App. 485

135 N.E.2d 440, 59 O.O. 330

HOUSH, Appellee, v. PETH, Appellant, et al.

Court of Appeals of Ohio, Montgomery County.

April 6, 1955.

Syllabus by the Court.

1. Under Section 2323.181, Revised Code, a motion for judgment notwithstanding the verdict may not be filed until after judgment is entered on the verdict; and, where such motion is filed before judgment is entered on the verdict, it has no legal effect and raises no question for a reviewing court.

2. Under the provisions of Section 2321.01, Revised Code, in a civil action, a reviewing court is required to consider the weight and sufficiency of the evidence, if error is predicated thereon, even though no motion for new trial has been filed, 'where such evidence to be considered appears as a part of the record filed in' such reviewing court.

3. The unwarranted appropriation or exploitation of a person's personality, the publicizing of a person's private affairs with which the public has no legitimate concern, or the wrongful intrusion into a person's private activities in such manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities, is an actionable invasion of the right of privacy.

4. The actions of a collection agency in making numerous telephone calls to a debtor every day for a period of three weeks, some of which were late at night; in making telephone calls to the debtor's superiors, informing them of the debt; and in calling such debtor out of the public school classroom, where she was employed, three times within 15 minutes, with the resultant threat of loss of employment, fall outside the bounds of reasonable methods which may be pursued in an effort to collect a debt; constitute a deliberately initiated systematic campaign to harass such debtor; and are actionable as an invasion of such debtor's right of privacy.

5. In an action for invasion of the right of privacy, it is not essential to a recovery to allege and prove special damages; if a wrongful invasion of such right is shown, substantial damages for injured feelings and mental anguish alone may be recovered.

6. In such action, punitive damages may be recovered where the element of malice appears.

McLeran, Kelly & McLeran, Dayton, for appellant.

James C. Baggott, Dayton, for appellee.

WISEMAN, Judge.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery County, Ohio, entered in favor of plaintiff, in an action for damages for the invasion of plaintiff's 'right of privacy.' The cause was tried to a jury which rendered a verdict against the defendant Mark A. Peth in the sum of $3,000. Motion for judgment non obstante veredicto was overruled. In entering judgment on the verdict, the trial court granted a remittitur in the amount of $1,000 and entered judgment for $2,000.

Because of the unusual nature of this litigation and the novel legal question raised we quote the pertinent part of the amended petition, as follows:

'Plaintiff for her cause of actions says that Mark A. Peth and Mary C. Peth * * * are engaged in the collection business on behalf of various creditors of diverse and sundry individuals including this plaintiff.

'Plaintiff further says that she is indebted to Dr. L. A. Lydic in the amount of one hundred ninety-seven ($197) dollars * * *.

'Plaintiff further says that the defendants called her on the telephone harassing and annoying her many times in the course of a day with regard to this collection and did call and annoy the plaintiff at her place of employment three times within 15 minutes on March 19, 1954; that as a result thereof, the plaintiff's employer told her on March 19, 1954, that unless this collection is 'straightened up' on or before March 23, 1954, that the plaintiff would thereupon be discharged from her employment.

'Plaintiff further says that the defendants have called the Supervisor of Music of the Dayton Public Schools and have called the plaintiff's landlord regarding said collection claiming the plaintiff did not pay her bills and inquiring as to her earnings, and for a period of approximately two weeks immediately prior to filing her petition herein, the defendants called the plaintiff at her place of residence eight or nine times a day dunning her for this collection, giving her notices and warnings and called her as late as 11:45 p. m., which calls were calculated to coerce the plaintiff into payment and which constant annoyance by the telephone caused the plaintiff to lose one of her roomers and a part of her income.

'Plaintiff further says that such constant daily annoyance and malicious calls to her, her employer and her landlord have constituted an invasion of her right of privacy and caused her nervousness, worry, humiliation, mental anguish and loss of sleep; * * * that unless restrained and permanently enjoined therefrom the defendants will continue to threaten, worry, annoy and humiliate her and cause her loss of sleep and loss of employment and further loss of income from her roomers, and unless restrained and permanently enjoined therefrom, will continue in the unlawful practice of law; that as a result of the foregoing, she has been damaged in the sum of ten thousand ($10,000) dollars.'

The defendant Mark A. Peth filed an answer, the pertinent part of which is as follows:

'Now comes the defendant, Mark A. Peth, and for his answer to the amended petition of the plaintiff, does admit that he is the owner and operator of a collection business known as Doctors Business Bureau, * * * but does deny that the defendant, Mary C. Peth, has any interest in said collection business.

'Further answering, defendant says that in connection with his operation of the Doctors Business Bureau, he received an account from Dr. L. A. Lydic of Dayton, Ohio, against the plaintiff herein in the amount of $225, and that the plaintiff was contacted a number of times in an attempt to secure collection of said account. * * * Defendant says that when plaintiff failed to pay the note at the end of the week, he contacted her further by telephone and did also call her at her place of business on the 19th day of March, 1954, but that plaintiff has made no further payments upon said note or account from the 15th day of February until the date of the filing of this answer.

'Defendant admits that he called the plaintiff a number of times at her home during the business hours of the day, and may have called her on Monday evenings prior to 9:00 p. m., at which time he is in his office, but defendant denies that he ever called the plaintiff late in the evening or that he has ever contacted the plaintiff in any way other than for business reasons in the collection of the above account.

'Further answering, defendant denies all other allegations contained in said amended petition.'

The defendant Mary C. Peth filed a general denial.

A temporary restraining order was issued as prayed for. Trial on the merits resulted in a general verdict for the plaintiff and against the defendant Mark A. Peth. A general verdict was rendered in favor of the defendant Mary C. Peth. No interrogatories were submitted. It cannot be determined what amount, if any, was allowed for punitive as distinguished from substantial or compensatory damages.

The defendant Mark A. Peth, the appellant herein, filed a motion for judgment notwithstanding the verdict. The record shows that the verdict was returned on December 1, 1954. The motion for judgment notwithstanding the verdict was filed on December 3, 1954. The motion was overruled December 16, 1654. Judgment on the verdict was entered on December 16, 1954. Thus, it appears that the motion was prematurely filed and had no legal effect. Section 2323.18, Revised Code, provides for the rendering of a judgment notwithstanding the verdict in a proper case 'upon motion of such party, filed as provided in section 2323.181 of the Revised Code.' In designating the section as 2323.181 an obvious error was committed in the enrolled bill. The section is correctly designated as Section 2323.18.1, Revised Code. This section in part provides:

'The motion provided for in section 2323.18 of the Revised Code * * * shall be filed * * * within ten days after the journal entry of judgment in conformity to the verdict shall have been approved by the court in writing and filed with the clerk for journalization.'

The later section also specifically provides that it shall apply to pending actions. This section became effective on October 27, 1953. Under the former sections of the Code, such motion was filed after the verdict and before judgment. Under the present section, the motion may not be filed until after judgment is entered on the verdict. The motion, being prematurely filed, had no legal effect. No motion for new trial was filed.

While we are of the opinion that the motion for judgment notwithstanding the verdict, being prematurely filed, raises no question for the reviewing court, nevertheless, the questions raised are otherwise evidenced by the record.

The three errors assigned are: First, error in giving special instructions, and in the general charge; second, error in overruling motion for judgment notwithstanding the verdict; and third the judgment is not sustained by sufficient evidence and is contrary to law. We are not required to consider assignment of error No. 2.

In a civil action reviewing court is required to consider the weight and sufficiency of the evidence, if error is predicated thereon, even though no motion for new trial has been filed. Section 2321.01, Revised Code, in part provides:

'A motion for a new trial is not necessary as a prerequisite to obtain appellate review of the sufficiency or weight of the evidence submitted to the trial court where such evidence to be considered appears as a part of the record filed in the appellate court.'

A complete bill of exceptions has been filed, which examplifies the...