Melvin v. Burling

• Decision Date: 13 March 1986
• Docket Number: No. 3-85-0352,3-85-0352
• Parties: , 95 Ill.Dec. 919 Mitch MELVIN and Brenda Melvin, Plaintiffs-Appellants, v. Eric BURLING, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1011

490 N.E.2d 1011 141 Ill.App.3d 786, 95 Ill.Dec. 919 Mitch MELVIN and Brenda Melvin, Plaintiffs-Appellants,
v.
Eric BURLING, Defendant-Appellee. No. 3-85-0352. Appellate Court of Illinois,
Third District. March 13, 1986.
Rehearing Denied April 17, 1986.

Ross A. Robinson and Albert V. Ancelet, Capps, Ancelet & Stoverink, Carthage, for plaintiffs-appellants.

Page 1012

[95 Ill.Dec. 920] Thomas W. O'Neal, Stanley L. Tucker and Michael L. Neff, Hartzell, Glidden, Tucker, Neff & O'Neal, Carthage, for defendant-appellee.

STOUDER, Justice:

Plaintiffs, Mitch and Brenda Melvin, appeal from the judgment of the circuit court of McDonough County granting a motion to dismiss their complaint made by defendant, Eric Burling.

This action was brought by the plaintiffs to recover damages which occurred as a result of an alleged invasion of privacy on the part of the defendant. The basis of the action was the receipt of numerous items through the mail which the plaintiffs had not ordered together with later demands for payment. Plaintiffs alleged that these items had in fact been intentionally ordered by the defendant who had used the plaintiffs' names without authority when ordering the items.

[141 Ill.App.3d 787] The trial court, acting upon defendant's Motion to Dismiss, found that no precedent for a case involving an unreasonable intrusion upon the seclusion of another, excepting cases involving the use of an individual's name or likeness for commercial purposes, presently exists in Illinois and dismissed the case for failure to state a cause of action. This appeal follows.

On appeal, we must determine whether a cause of action exists in Illinois for an unreasonable intrusion upon the seclusion of another and, if so, whether the plaintiffs in the instant case have sufficiently stated such a cause of action in their complaint. We proceed with the assumption that the facts as alleged by the plaintiffs are true for the purpose of considering the propriety of the defendant's motion to dismiss. The gist of the complaint is that the defendant intentionally ordered merchandise in the plaintiffs' names without the plaintiffs' consent, to be sent to the plaintiffs, followed by demands for payment to the plaintiffs for such unordered merchandise.

The area of tort law generically known as invasion of privacy had its beginning in a law review article written by former Supreme Court Justice Louis D. Brandeis and his then private law partner, Samuel D. Warren. (See, Warren and Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193 (1890).) The tort was expanded, with overall judicial approval, by the late Dean Prosser to consist of four distinct torts, namely: (1) intrusion upon the plaintiff's seclusion or solitude, or into his private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity which places the plaintiff in a false light in the public eye; and (4) appropriation, for the defendant's advantage, of the plaintiff's name or likeness. (See, D. Prosser, Torts, sec. 112, at 832 (3d ed.1963); D. Prosser, Privacy, 48 Cal.L.Rev. 383, 389 (1960).)

Illinois first recognized a cause of action sounding in privacy in Eick v. Perk Dog Food Co. (1952), 347 Ill.App. 293, 106 N.E.2d 742. Eick and other early privacy cases concerned the area of invasion of privacy known as "appropriation." (See also, Annerino v. Dell Publishing Co. (1958), 17 Ill.App.2d 205, 149 N.E.2d 761; Bradley v. Cowles Magazines, Inc. (1960), 26 Ill.App.2d 331, 168 N.E.2d 64; Carlson v. Dell Publishing Co. (1965), 65 Ill.App.2d 209, 213...