LeCrone v. Ohio Bell Tel. Co.

• Decision Date: 10 September 1963
• Citation: 201 N.E.2d 533,120 Ohio App. 129
• Parties: , 28 O.O.2d 374 LeCRONE, Appellant, v. The OHIO BELL TELEPHONE CO., Appellee. *
• Court: Ohio Court of Appeals

Page 129

120 Ohio App. 129

201 N.E.2d 533, 28 O.O.2d 374

LeCRONE, Appellant, v. The OHIO BELL TELEPHONE CO., Appellee. ^*

Court of Appeals of Ohio, Tenth District, Franklin County.

Sept. 10, 1963.

William J. Lohr, Columbus, for appellant.

Porter, Stanley, Treffinger & Platt and John H. Leddy, Columbus, for appellee.

DUFFEY, Judge.

This is an appeal from a judgment of the Common Pleas Court of Franklin County. The action is one in intentional tort for invasion of privacy. The judgment was rendered upon defendant-appellee's motion for a directed verdict at the close of plaintiff-appellant's case. The evidence must therefore be construed most favorably to the plaintiff and where sufficient to raise an issue of fact must be resolved in plaintiff's favor.

Plaintiff, Mary LeCrone (nee Dodge), was the wife of Clayton LeCrone. They resided at 230 Rosslyn Avenue, Columbus, Ohio, for about twelve years. In early 1960, a divorce action was pending, and a court hearing had been held in February. Mrs. LeCrone commenced the proceedings, and the divorce was eventually awarded her husband in late 1960. However, in March 1960, Mrs. LeCrone had moved from the Rosslyn address to an apartment at 1494 North High Street, Columbus, Ohio, which was about seven or eight miles from Rosslyn Avenue. While the divorce had not been granted at that time, there had been a legal separation.

After moving, she requested telephone service from the defendant, The Ohio Bell Telephone Company. She subscribed for a private line in her own name. At that time, the company's representative questioned her about her relationship to her husband. She informed the representative that she was responsible for her own debts and had to pay her own phone bill, that she was employed, and that she was getting a divorce. The billings for the line were sent to her in her name and she paid them. Her husband did not pay them.

On May 11, 1960, a company service representative received a request for an extension on Mrs. LeCrone's line, the extension to be placed at her husband's home at 230 Rosslyn Avenue. The person making the request is not identified in the record. The service representative merely testified that it was a male and that she did not know who it was of her own knowledge. The telephone installation man testified that he installed the extension at Rosslyn, and that he talked to a man there who identified himself as Mr. LeCrone. This extension service was provided by simply placing a 'jumper' on the company's equipment at its central office from Mrs. LeCrone's line to another and then installing a phone at the Rosslyn address. No one went to Mrs. LeCrone's apartment or dealt with the wires at her apartment. No one notified Mrs. LeCrone of the extension order or installation. The billing for the extension was made separately to Clayton LeCrone. Mrs. LeCrone testified that thereafter she heard 'noise' on my phone, like someone was listening in.' She complained to the company about the noise. The line was checked and no malfunction of the equipment was found. She complained again about noises. On May 30, another check was made and she was informed for the first time of the existence of the extension. She informed the company that she did not ask for such an extension and requested that it be cut off immediately. It was disconnected the next day.

Mrs. LeCrone could not say 'of her own knowledge' that anyone listened to her conversations, and she expressly disclaimed that anyone connected with or employed by the company listened to her conversations. The conversations during this period included talks with friends and with her attorney as to the pending divorce and property settlement. There is also testimony as to distress, anguish, nervousness and other effects of the occurrence.

Dean William L. Prosser has pointed out that in the development of the right of privacy the courts today generally recognize four distinct types of invasion which, while overlapping, are yet quite distinct. One of these is the intrusion upon a person's seclusion or private affairs. See Prosser, Privacy, 48 Cal.L.Rev., 383 (1960). The Ohio Supreme Court has described this invasion as 'the wrongful intrusion into one's private activities in such a manner as to outrage or to cause mental suffering, shame or humiliation to a person of ordinary sensibilities.' Housh v. Peth (1956), 165 Ohio St. 35, 133 N.E.2d 340. It is interesting to note that Dean Prosser points out that this aspect of the right of privacy was not involved in the original essays of Warren and Brandeis in the year 1890 in 4 Harvard Law Review, 193.

As the Housh case states, the act must be one which is offensive or objectionable to the reasonable man. It is also necessary that the thing intruded upon or pried into is, and must be entitled to be, private. The interest protected is primarily a mental one rather than economic or pecuniary. It is an intentional tort analogous to trespass and battery in protection of personal integrity. Actual damage is not necessary. Proof of the unjustified invasion entitles the plaintiff to at least nominal damages, and the jury may award substantial damages. Special pecuniary loss as well as punitive damages may be recovered if pleaded and proved.

As a general proposition, eavesdropping on phone conversations of another by unauthorized mechanical means, or a socalled 'tap,' is the kind of act or conduct that fits the definition of an intrusion or prying into another's private affairs. Such conduct generally would be criminal, a violation of public utility law, a clear invasion of the subscriber's right to exclusive use and, in our opinion, an affront to the sensibilities of a reasonable man. The decision of this court in an earlier appeal of this case and the decisions of other states so hold. LaCrone v. Ohio Bell Telephone Co. (1961), 114 Ohio App. 299, 182 N.E.2d 15; McDaniel v. Atlanta Coca-Cola Bottling Co. (1939), 60 Ga.App. 92, 2 S.E.2d 810; Rhodes v. Graham (1931), 238 Ky. 225, 37 S.W.2d 46; Souder v. Pendleton Detectives, Inc. (La.App., 1956), 88 So.2d 716; Roach v. Harper (1958), 143 W.Va. 869, 105 S.E.2d 564. Cf. People v. Trieber (1946), 28 Cal.2d 657, 171 P.2d 1. As to possible permissible 'monitoring,' see Chaplin v. National Broadcasting Co., Inc. (S.D., N.Y.1953), 15 F.R.D. 134, at 140; People v. Appelbaum (1950), 277 App.Div. 43, 97 N.Y.S.2d 807, affirmed, 301 N.Y. 738, 96 N.E.2d 410; Schmukler v. Ohio Bell Telephone Co. (C.P., 1953), 116 N.E.2d 819.

The questions presented by the facts in this case are: (1) There being no act of physical trespass by anyone, and no eavesdropping by any employee or agent of appellee company, has the company itself committed an act of invasion of privacy? Plaintiff contends that the mere fact of installation, regardless of the interception of conversations, is an invasion. (2) Is the defendant a joint tortfeasor with several liability as an aider in an actionable invasion of privacy by the husband, Clayton LeCrone? As discussed infra, this requires proof of an actionable invasion by the third person and substantial material assistance by defendant with knowledge. The subsidiary questions under this analysis are:

(a) Did the husband commit an actionable invasion of plaintiff's privacy? There is an evidentiary question of the sufficiency of proof that the husband did eavesdrop. Assuming that, there is the legal question of the effect of the relationship of husband and wife upon the concept of what constitutes an invasion of privacy.

(b) While it is apparent that the installation of the extension was substantial aid in the husband's acts, is there sufficient evidence to hold the corporation to knowledge of an unlawful use?

Returning to the first question, plaintiff has earnestly contended that the fact of an unauthorized connection on her line is an invasion regardless of whether anyone listens to a conversation. Reliance is placed on Judge McLaughlin's opinion in the earlier appeal, 114 Ohio App. 299, 182 N.E.2d 15. The point was not before the court in ruling on the demurrer. The amended petition specifically alleged that the defendant did tap and 'did intercept' telephone conversations. Isolated statements in the opinion might be construed to support plaintiff's contention. However, in context, the decision clearly assumed that conversations were overheard. The distinction made by Judge McLaughlin was that there need not be any allegation as to the content of the conversations or a publication of any information so obtained. These matters aggravated the offense and go to damages. They are not essential to the cause of action. It was in contradistinction to publication that the opinion of this court referred to the 'tap or wrongful or unwarranted connection as constituting an original act of intrusion. It might also be noted that the court did not have before it any information as to the manner in which the connection of the extension was accomplished.

We think it significant that in each of the cases cited the facts show that conversations were intercepted. In considering them it is also well to note that, as Dean Prosser has pointed out in his article, several distinct acts of invasion are frequently combined in a particular occurrence. For example, in many instances, the conduct in installing equipment, or otherwise preparing to eavesdrop, will itself constitute a trespass and a physical invasion of another's seclusion regardless of eavesdropping. In the present case, no physical intrusion was made upon plaintiff's premises. All acts which enabled or created the capacity to eavesdrop occurred off the premises and with reference to defendant's equipment and Clayton LeCrone's house. This case is unique in that respect. The fact of a tap may, as indicated infra, be evidence from which to infer the fact of interception and eavesdropping, but in this case it is conceded that defendant did not in fact intercept...