Housh v. Peth

Decision Date14 March 1956
Docket NumberNo. 34467,34467
Citation165 Ohio St. 35,133 N.E.2d 340
Parties, 59 O.O. 60 HOUSH, Appellee, v. PETH, Appellant, et al.
CourtOhio Supreme Court

Syllabus by the Court.

1. The right of privacy is the right of a person to be let alone, to be free from unwarranted publicity, and to live without unwarranted interference by the public in matters with which the public is not necessarily concerned.

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

3. A creditor has a right to take reasonable action to pursue his debtor and persuade payment.

4. Such action is not reasonable where a creditor or his representative initiates a campaign to harass and torment the debtor, telephones the debtor six or eight times every day at her home and place of employment--some of the calls as late as 11:45 p. m.--over a period of three weeks, telephones the debtor's superiors and informs them of the debt, and calls the debtor at her place of employment three times within a period of 15 minutes with a resultant threat of loss of employment

In the Court of Common Pleas the plaintiff instituted this action to recover damages for an invasion of her right of privacy by the defendants.

In her amended petition the plaintiff alleged:

'Plaintiff for her cause of action says that Mark A. Peth and Mary C. Peth, also known as Mrs. Nicholas A. Peth, d. b. a. Doctors Business Bureau, at 868 Reibold Building, Dayton, Ohio, 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 and that the defendants by trick and deceit caused the plaintiff to sign a cognovit note payable to the said Lydic in the amount of two hundred twenty-two ($222) dollars on account of said debt. Defendants have been engaged in the unlawful practice of law in connection therewith in that they have threatened to place the matter in the hands of their lawyer and threatened to sue her.

'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 the threat of the defendants to sue the plaintiff and to turn the claim over to their lawyer constitutes the unlawful practice of law; 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.

'Wherefore, plaintiff prays the court for a temporary restraining order and permanent injunction against the defendants from calling her, her employer, her landlord and the agents and employees of any of them, and from the unlawful practice of law or in any other manner annoying, worrying or humiliating her or doing any other act or thing that is calculated or may result in the loss of her employment, loss of sleep and loss of income, and that she be awarded damages against the defendants in the sum of ten thousand ($10,000) dollars together with her costs herein expended.'

To the plaintiff's amended petition the defendant Mary C. Peth filed a general denial.

The defendant Mark A. Peth filed an answer admitting that he owns and operates the Doctors Business Bureau; that he contacted the plaintiff a number of times in an attempt to secure collection of the account owed by the plaintiff; that he called the plaintiff several times by telephone at her home and at her place of business; and that he may have called her some evenings prior to 9:00 p. m. But he denied that he ever called the plaintiff late in the evening or that he ever contacted the plaintiff in any way other than for business reasons in the collection of the account. Likewise, he denied the remaining allegations in the plaintiff's amended petition.

In the trial court a temporary restraining order was allowed as prayed for. Later the case was tried and the jury returned a verdict for the plaintiff in the sum of $3,000 against the defendant Mark A. Peth but in favor of the defendant Mary C. Peth. However, the court ordered a remittitur of $1,000 which was accepted, and a judgment was rendered for $2,000.

On an appeal by the defendant Mark A. Peth to the Court of Appeals on questions of law, the judgment of the Court of Common Pleas was affirmed.

The cause is in this court for a review by reason of the allowance of the defendant Mark A. Peth's motion to certify the record.

McLeran, Kelly & McLeran, Dayton, for appellant.

James C. Baggott, Dayton, for appellee.

WEYGANDT, Chief Justice.

The first question presented by the defendant is whether the right of privacy exists in Ohio.

This right has had an interesting history. Its basic concept in various forms is not new, but in this country its chief impetus as an independent right seems to have originated in an article by Samuel D. Warren and Louis D. Brandeis in the year 1890 in 4 Harvard Law Review, 193. The first recognition of the right by a court of dernier ressort apparently was in the case of Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68, 69 L.R.A. 101, 106 Am.St. Rep. 104, 2 Ann.Cas. 561. The syllabus in that case reads in part as follows:

'2. A right of privacy is derived from natural law, recognized by municipal law, and its existence can be inferred from expressions used by commentators and writers on the law as well as judges in decided cases.

'3. The right of privacy is embraced within the absolute rights of personal security and personal liberty.

'4. Personal security includes the right to exist, and the right to the enjoyment of life while existing, and is invaded not only by a deprivation of life, but also by a deprivation of those things which are necessary to the enjoyment of life according to the nature, temperament, and lawful desires of the individual.

'5. Personal liberty includes not only freedom from physical restraint, but also the right 'to be let alone'; to determine one's mode of life, whether it shall be a life of publicity or of privacy; and to order one's life and manage one's affairs in a manner that may be most agreeable to him so long as he does not violate the rights of others or of the public.'

Since that decision by the Supreme Court of Georgia, the right of privacy has been recognized by the following jurisdictions: Alabama, Arizona, California, District of Columbia, Florida, Indiana, Kansas, Kentucky, Michigan, Missouri, New Jersey, North Carolina, Oregon, Pennsylvania and South Carolina.

Annotations on the subject appear in 138 A.L.R. 22; 168 A.L.R. 446; 14 A.L.R.2d 750.

Helpful summaries are found in 41 American Jurisprudence, 923, and in 77 C.J.S., Right of Privacy, § 1, p. 396.

In Ohio the lower courts have acknowledged the right, but counsel are agreed that it still is a matter of first impression in this court. However, since both reason and authority are convincingly in favor or recognition of the right, it would seem that Ohio, too, should not hesitate to take the definite step of approving this salutary and progressive principle of law.

But the defendant contends that, even though the right of privacy is recognized by this court, the judgment in the instant case must be reversed because of prejudicial error in the charge of the trial court in stating the rule to the jury. The following are the three special charges given at the plaintiff's request:

Special charge No. 1:

'The court charges the jury that this plaintiff has a right of privacy and that the unwarranted invasion of such right, if you find from the evidence her right was invaded by either of the defendants, or both of them, will entitle her to a verdict against such defendant or both of them as invaded her right of privacy, and I charge you that as a matter of law the plaintiff's right of privacy and to personal security includes the right to be let alone, and that she has the right to order her own life and manage her own affairs in a manner that may be most agreeable to her so long as the exercise...

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  • Kohler v. City of Wapakoneta, No. 3:04 CV 7148.
    • United States
    • U.S. District Court — Northern District of Ohio
    • 12 Agosto 2005
    ...manner as to outrage or to cause mental suffering, shame or humiliation to a person of ordinary sensibilities." Housh v. Peth, 165 Ohio St. 35, 133 N.E.2d 340, 343 (1956). Harrison cites to several cases holding that the expectation of privacy in a toilet stall is not absolute, and that if ......
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  • Doe v. Methodist Hosp.
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    ...Educ., 455 Mich. 285, 565 N.W.2d 650 (1997) (Freedom of Information Act supercedes state employee's privacy right); Housh v. Peth, 165 Ohio St. 35, 133 N.E.2d 340 (1956). On the other hand, a few states have refused to recognize disclosure. See Hall v. Post, 323 N.C. 259, 372 S.E.2d 711 (19......
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    • 28 Julio 1998
    ...shame or humiliation to a person of ordinary sensibilities. Sustin v. Fee, 69 Ohio St.2d 143, 431 N.E.2d 992 (1982); Housh v. Peth, 165 Ohio St. 35, 133 N.E.2d 340 (1956). No allegations in the amended complaint support a claim under the appropriation theory of invasion of privacy. Plaintif......
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1 books & journal articles
  • Recasting privacy torts in a spaceless world.
    • United States
    • Harvard Journal of Law & Technology Vol. 21 No. 1, September 2007
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    ...against plaintiff in order to suppress plaintiff's criticism and disclosure of information about its products); Housh v. Peth, 133 N.E.2d 340 (Ohio 1956) (holding that wrongful invasion of privacy occurred when creditor initiated a campaign to harass and torment debtor by continuously telep......

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