Mason v. Peaslee, 23627

• Decision Date: 10 September 1959
• Docket Number: No. 23627,23627
• Citation: 343 P.2d 805,173 Cal.App.2d 587
• Court: California Court of Appeals Court of Appeals
• Parties: Russell MASON, dba Western Tel. & Sound Labs., Plaintiff and Appellant, v. Margaret PEASLEE, aka Mrs. Robert Peaslee, and Sunset Potteries of Arcadia, a corporation, Defendants and Respondents. Civ.

Page 805

343 P.2d 805

173 Cal.App.2d 587

Russell MASON, dba Western Tel. & Sound Labs., Plaintiff and Appellant, v. Margaret PEASLEE, aka Mrs. Robert Peaslee, and Sunset Potteries of Arcadia, a corporation, Defendants and Respondents.

Civ. No. 23627.

District Court of Appeal, Second District, Division 1, California.

Sept. 10, 1959.

Glenn B. Soelberg, Los Angeles, for appellant.

Howser, Coughlin & Schmitt and James J. Coughlin, Arcadia, for respondents.

NOURSE, Justice por tem.

Plaintiff appeals from a judgment of dismissal entered after the trial court had granted defendant's motion for a judgment of nonsuit. ¹

The judgment of the trial court cannot be sustained unless interpreting the evidence most favorably to plaintiff's case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.

The action is one brought to recover upon a promissory note executed by the defendant. After offering the note in evidence and proving its execution by the defendant and that the note had not been paid, the plaintiff did not rest as he might well have done but proceeded to offer evidence to show the consideration for the note. In shbstance this evidence, viewed in the light most favorable to plaintiff, established the following facts:

The plaintiff was engaged in business as a sound engineer. He had been in that business for 18 years. The plaintiff was not licensed as a private investigator under the provisions of Division III of chapter 11 of the Business and Professions Code (§ 7500 et seq.); he had never held himself out as being so licensed and had been advised by the Bureau of Private Investigators and Adjustors that the business he was engaged in did not require him to be so licensed; the work in which he was engaged was the recording of proceedings of meetings of boards of directors, conventions, speeches, business meetings, and personal conversations; he did this work not only for corporations, attorneys and individuals but for police departments, sheriff's offices and the federal government; in many instances the parties whose conversations were recorded did not know that a record was being made; he made these recordings by the installation of microphones and the transmission from the microphone to a recording device of the sounds picked up by the microphones through radio waves or through electric currents transmitted over wires; he was not listed in the classified section of the telephone directory as a private investigator but as having recording equipment for rent; he was first contracted by the defendant Mrs. Peaslee over the telephone; she stated to the plaintiff that she wanted to rent recording equipment to place in her husband's office; she wanted equipment that would work automatically; plaintiff advised her that as her husband's office was on a very busy street his equipment would not function automatically but that his recording device would have to be operated by him or one of his assistants. Thereafter the plaintiff met the defendant Peaslee and told her that it would be necessary to put a microphone in the office of her husband and to pick up the conversations that took place and record them in plaintiff's truck which was equipped with the recording devices. They discussed what plaintiff would charge and plaintiff quoted the defendant the price of $100 to $125 per day for the use of his equipment and services of someone to operate the recording devices, the price depending upon whether plaintiff could secure a connection to electric wires and obtain power or whether it would be necessary for him to use batteries for that purpose. Thereafter defendant took the plaintiff to her husband's office and showed him where to install the microphones; plaintiff installed the microphones and defendant paid him $300 on account. Thereafter for a period of 11 or 12 days plaintiff recorded conversations tht took place in the office of defendant's husband and on these days plaintiff operated the recording equipment and defendant listened to the conversations and monitored them. Defendant Peaslee told plaintiff that she wanted to record the conversations in the office to determine whether the employees of her husband were dishonest and secreting money or whether her husband was dishonest and secreting money. She also told him she was concerned over the question of whether her husband was a sex pervert.

After the completion of the recording in the office, defendant Peaslee told plaintiff that her husband was going to Florida in the company of another man and she desired him to go to Florida and record conversations between her husband and this man there. Plaintiff went to Florida. While there at the direction of defendant he employed a firm of private detectives to locate defendant's husband and installed a microphone in Mr. Peaslee's bedroom. He did not record any conversations. Plaintiff paid out of his own pocket monies for the entire expenses of the trip including the charges of the private investigators employed by him there.

On his return at defendant's request, he fixed a microphone and transmitting device to her person so that any conversations between herself and her husband might be recorded and set up a...