McDaniel v. Atlanta Coca-Cola Bottling Co.

• Decision Date: 12 May 1939
• Docket Number: 27482,27538.
• Citation: 2 S.E.2d 810,60 Ga.App. 92
• Parties: McDANIEL v. ATLANTA COCA-COLA BOTTLING CO. ATLANTA COCA-COLA BOTTLING CO. v. McDANIEL.
• Court: Georgia Court of Appeals

2 S.E.2d 810

60 Ga.App. 92

McDANIEL v. ATLANTA COCA-COLA BOTTLING CO.

ATLANTA COCA-COLA BOTTLING CO. v. McDANIEL.

Nos. 27482, 27538.

Court of Appeals of Georgia, Division No. 2.

May 12, 1939

Syllabus by the Court.

Assignments of error to allowance of amendment to defendant's plea and answer and overruling demurrer thereto, and in permitting verdict and final judgment to be rendered for defendant which alleged that rulings of court were controlling, were sufficient, notwithstanding that record contained no brief of evidence and no copy of charge of court. Code 1933, § 6-804.

"Personal security" guaranteed by Constitution 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.

"Personal liberty" guaranteed by the Constitution includes not only freedom from physical restraint, but also the right to be let alone and to determine one's mode of life whether it be a life of publicity or of privacy, and to order one's life and manage his 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.

The right of privacy is guaranteed by state and federal constitutional provisions declaring that no person shall be deprived of "liberty" except by due process of law. U.S. C.A.Const. Amend. 14.

A petition alleging that defendant against whom plaintiff was asserting claim for personal injuries caused receiving set to be installed in plaintiff's room, by means of which defendant's agent listened to confidential communications of plaintiff with husband and physicians and nurses, stated cause of action for invasion of plaintiff's right of privacy, notwithstanding that no physical injury was sustained by plaintiff, and that information obtained was not published or commercialized. Code 1933, §§ 26-2001, 26-2002, 26-2004, 105-103.

A corporation against which plaintiff was asserting claim for personal injuries was not justified in secretly installing receiving set in plaintiff's hospital room by means of which corporation's agent listened to plaintiff's private conversations with husband, nurses, and physicians notwithstanding that plaintiff had authorized attorneys for corporation to make any investigation concerning claim for injuries asserted by plaintiff against corporation, and that corporation believed that claim was fraudulent. Code 1933, §§ 26-2001, 26-2002, 26-2004, 105-103.

In action for invasion of plaintiff's right of privacy defendant was entitled to set up any facts which might be considered by jury in extenuation of mitigation of damages. Code 1933, § 105-1802.

In action against corporation for invasion of plaintiff's right of privacy by secretly installing receiving set in plaintiff's hospital room by means of which corporation's agent listened to plaintiff's conversations with husband, physicians, and nurses, the fact that plaintiff had authorized attorneys for corporation to make any investigation of claim for injuries asserted by plaintiff against corporation, and that corporation believed claim to be fraudulent, were proper for consideration of jury upon issue of extenuation or mitigation of damages. Code 1933, §§ 26-2001, 26-2002, 26-2004, 105-103, 105-1802.

1. The motion to dismiss the writ of error is without merit.

2. The court did not err, for any reason assigned, in allowing the amendment to the defendant's plea and answer, in overruling the plaintiff's general demurrer to the plea and answer as amended, and in permitting the verdict and judgment to be rendered.

3. The petition as amended set out a cause of action for invasion of the plaintiff's right of privacy, and the court did not err in overruling the general demurrer of the defendant. [Copyrighted Material Omitted]

Mrs. J. M. McDaniel filed suit against Atlanta Coca-Cola Bottling Company and several individuals to recover damages on account of an alleged violation of her right to privacy. Subsequently, on motion of the plaintiff, the individuals were eliminated as defendants, and the case proceeded only against the bottling company. The petition, as amended and after certain portions had been stricken on special demurrer, alleged that from October 26, 1936, to November 21, 1936, she was confined as a patient in Emory University Hospital at Emory University, Georgia, and that while occupying a private room in said hospital the defendant caused to be placed in plaintiff's room a receiving set which was connected to a set of earphones in a room above that of plaintiff; that said receiving set and earphones constituted a contrivance which was designed to pick up the human voice in one room and permit another person listening by means of the earphones to hear everything said and done in the room where the receiving set was located; that the receiving set was placed in plaintiff's room wrongfully and unlawfully, without her knowledge or consent, and was hidden and concealed in the bedside table adjacent to plaintiff's bed; that up on the installation of such devices the defendant procured a named individual to become admitted to said hospital as an alleged patient and placed in the room where the earphones were installed, and did procure the said person to listen over said earphones and through said set to everything said and done by plaintiff during the time the said receiving set was in her room; that the prime purpose of admitting the said person into the hospital as an alleged patient was to have him listen to, and report to defendant, everything said and done by plaintiff, and that he did listen over said earphones day and night from November 12, 1936, to November 21, 1936; that during the period mentioned plaintiff carried on numerous, intimate and private conversations with her husband, J. M. McDaniel, certain nurses, namely, Annie Sanders, Ila Ellene Walker and Elise King, her doctor, Dr. C. E. Cunningham, and friends, plaintiff being unable to recall more definitely the exact dates and hours of the conversations, and that the said person heard and recorded everything said by plaintiff and delivered to the defendant the record of said conversations; that the said person was in need of no hospital treatment at that time, and his only purpose as a patient was to spy on plaintiff, trespass upon her and invade her right of privacy, and that the conversations aforesaid were delicate, intimate and private in their nature, and that the said described acts upon the part of person at the instance of the defendant were an aggravated trespass upon her right of privacy; that the presence of the receiving set in her room at the hospital was unknown to plaintiff at the time of its installation and during the time of her stay as a patient in the hospital, and that the fact that she had been spied upon by the said person, and that all of her acts, doings and conversations had been reported to the defendant, did not become known to her until on or about March 1, 1937; that as a proximate result of the unlawful and wrongful acts on the part of the defendant, as aforesaid, she suffered great mental pain and distress, her feelings were wounded, she was greatly embarrassed, shocked and humiliated, and that the said acts on the part of the defendant were an attack on her good name and character, and that they were wilful, intentional and malicious. Judgment was prayed for $100,000.

The defendant filed an answer denying the substantial allegations of the petition, but subsequently filed an amendment admitting that it caused to be installed the receiving set and earphones, and that the said person, at its instance listened in and reported to it what he had overheard, but set up that in all of its acts it was justified by reason of facts which it alleged substantially as follows: that on October 26, 1936, it was reported to the company that the plaintiff claimed to have purchased a bottle of Coca-Cola manufactured and bottled by the defendant, and that in consuming it she had swallowed particles of glass from the bottle, and had been damaged in certain respects, that she claimed to be in danger of strangling and requested that a physician be summoned and that she be taken to a hospital, these facts having been reported to defendant's counsel by the doctor who had responded to her call, the report of her alleged condition having been made at her request, and that in view of her claims, but without admitting liability, the doctor was authorized by counsel to have her placed in Emory University Hospital for emergency treatment, that it was subsequently reported to defendant that the plaintiff had been taken to the hospital, but that no indication to the effect that she had swallowed glass could be discovered, that nevertheless she remained in the hospital through November 11, 1936, that pieces of broken glass were found in the bed pan used by her while a patient therein, that during that time she repeatedly made threats that she intended to claim damages from the defendant and that unless a settlement was made she would employ attorneys and file suit, that she from time to time communicated these threats to the defendant, and defendant made an investigation which disclosed to them facts which, on information, they in good faith believed to be true and reliable, viz., that the plaintiff, at the time she purchased the bottle of Coca Cola, did not drink the contents promptly but held the bottle in her hand a much longer time than is usually taken for a person to consume a bottle of Coca-Cola, that after consuming about one-third of the contents she, when one of the clerks...