Norris v. Moskin Stores, Inc.

• Citation: 272 Ala. 174,132 So.2d 321
• Decision Date: 06 April 1961
• Docket Number: 6 Div. 612
• Parties: Nealus E., NORRIS v. MOSKIN STORES, INC. et al.
• Court: Supreme Court of Alabama

Page 321

132 So.2d 321

272 Ala. 174

Nealus E., NORRIS v. MOSKIN STORES, INC. et al.

6 Div. 612.

Supreme Court of Alabama.

April 6, 1961.

Rehearing Denied May 18, 1961.

Jenkins & Cole, Birmingham, for appellant.

Sirote, Permutt, Friend & Friedman, Birmingham, for appellees.

STAKELY, Justice.

Nealus E. Norris (appellant) brought an action for damages against Moskin Stores, Inc. and Morris Nathan (appellees). Counts 1 and 3 of the complaint, as amended, seek damages for invasion of plaintiff's privacy. Count 4 of the amended complaint avers 'an intentional interference' by defendants with plaintiff's 'marital contract and marital relations.' Count 2, which set forth a cause of action for slander, was stricken and is not involved on this appeal. The defendants separately and severally demurred to the complaint as amended and separately and severally to each count thereof. The trial court sustained the demurrers and, on motion of plaintiff, granted a nonsuit. From this order plaintiff has appealed, assigning as error the ruling of the trial court on the demurrers.

The gist of plaintiff-appellant's cause for invasion of privacy is contained in the allegations of Count 3, which are as follows '* * * defendants were operating a commercial and mercantile business in the City of Birmingham, attempting to collect money allegedly owed by plaintiff to Moskin Stores, Inc. Plaintiff avers that an agent, servant, or employee of the defendants, while acting within the line and scope of her employment as such agent, servant, or employee in the course of said commercial and mercantile business, in attempting to collect money allegedly owed by plaintiff, by the use of the telephone, called plaintiff's wife on two occasions at the place where she was employed and stated, in substance, that the person calling was 'Doris,' that she had met the plaintiff in Indiana, that she had dated him, that she had to get in touch with plaintiff on a matter of importance, that said Doris wanted to meet with plaintiff alone and without plaintiff's wife being present, and said agent, servant, or employee as aforesaid left a telephone number, which number plaintiff was to call; plaintiff further avers that on the same date, an agent, servant, or employee of the defendants, while acting within the line and scope of her employment as such agent, servant, or employee, in the course of said commercial and mercantile business, in attempting to collect money allegedly owed by plaintiff, called plaintiff's sister-in-law inquiring as to plaintiff's whereabouts and his place of employment, that she (Doris) was 'in trouble' and had to get in touch with plaintiff, inquiring as to whether plaintiff was married, and upon being advised in the affirmative she stated that 'he (meaning the plaintiff) told me he wasn't married'; that said person, in the course of the aforesaid telephone conversations, and in an effort to locate plaintiff's employment, led persons to whom she was speaking into believing that plaintiff had engaged, or was engaging, in activities contrary to the recognized conventions of his marital status.

'Plaintiff avers that the aforesaid inquiries and statements made over the telephone by an agent, servant, or employee of the defendants, while acting within the line and scope of her employment as such agent, servant, or employee, in the cause of said commercial and mercantile business, in attempting to collect money allegedly owed by plaintiff as aforesaid; violated plaintiff's right of privacy, and as a proximate consequence thereof plaintiff suffered the following injuries and damages; he was humiliated and embarrassed; his marital relations and homelife were disrupted; his wife parted from him for a short time; he was caused to suffer mental anguish; and his character and reputation were damaged and injured, for all of which plaintiff claims damages.'

The State of Alabama is among those states which recognize that a man has a right of privacy the violation of which may be actionable. Smith v. Doss, 251 Ala. 250, 37 So.2d 118. The particular application of the principles of the right of privacy which these appellants seek to make is, however, as yet novel to this jurisdiction. The earlier cases decided by this court have concerned situations in which it was claimed that the defendant had given unwarranted and intrusive publicity to the private affairs of the plaintiff, Smith v. Doss, supra, and Abernathy v. Thornton, 263 Ala. 496, 83 So.2d 235, or had made unauthorized use of plaintiff's name for commercial purposes. Birmingham Broadcasting Co. v. Bell, 259 Ala. 656, 68 So.2d 314; 263 Ala. 355, 82 So.2d 345. But nothing in the foregoing cases shows that the action for invasion of privacy is necessarily limited to those situations alone. For example, a cause of action for invasion of privacy has been held to lie for unwarranted intrusion by means of a listening device (McDaniel v. Atlanta Coca-Cola Bottling Co., 60 Ga.App. 92, 2 S.E.2d 810, 811; Roach v. Harper, W.Va., 105 S.E.2d 564), for persistent shadowing (Schultz v. Frankfort Marine, Acci. & P.G. Ins. Co., 151 Wis. 537, 139 N.W. 386, 43 L.R.A.,N.S., 520), and for a shop manager's angrily and roughly accosting a female customer and searching her coat and purse (Bennett v. Norban, 396 Pa. 94, 151 A.2d 476, 71 A.L.R.2d 803).

It is suggested in Prosser, Law of Torts 637-39 (2nd ed. 1955), that the invasion of privacy tort consists in fact of four distinct wrongs, (1) 'the intrusion upon the plaintiff's physical solitude or seclusion,' (2) 'publicity which violates the ordinary decencies,' (3) 'putting the plaintiff in a false but not necessarily defamatory position in the public eye,' and (4) 'the appropriation of some element of the plaintiff's personality for a commercial use.' We think this analysis fundamentally consistent with our statement in the Doss case and reaffirmed in the Abernathy case, adopted from 41 Am.Jur. 925, that the right of privacy is "the right of a person to be free from unwarranted publicity,' or 'the unwarranted appropriation or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities in such manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities." [Emphasis added.]

We think that there may be circumstances under which the actions of a creditor in regard to his debtor fall within Dean Prosser's first category of actionable wrong, or, in the words of the Doss case, constitute an outrageous 'wrongful intrusion.'

The mere efforts of a creditor, in this case the appellees, to collect a debt cannot without more be considered a wrongful and actionable intrusion. A creditor has and must have the right to take reasonable action to pursue his debtor and collect his debt. But the right to pursue the debtor is not a license to outrage the debtor. The problem of defining the scope of the right of privacy in the debtor-creditor situation is the problem of balancing the interest of the creditor in collecting his debt against that of the debtor in his own personality. Some courts appear to have struck that balance on the so-called 'rule of reason.' Thus in the recent case of Housh v. Peth, 99 Ohio App. 485, 135 N.E.2d 440, 449, affirmed 165 Ohio St. 35, 133 N.E.2d 340, the Ohio appellate courts asserted that 'a creditor has a right to take reasonable action to pursue his debtor and pursuade payment, although the steps taken may result to a certain degree in the invasion of the debtor's right of privacy,' but that the debtor has a cause of action for injurious conduct on the part of the creditor which exceeds the bounds of reasonableness. We approve this statement.

The phrase 'reasonable action' is of course not one for which exact legal definition can be prescribed. What constitutes 'reasonable' action must depend largely on the facts of the particular case. In Housh v. Peth, supra, the creditor-defendant 'deliberately initiated a systematic campaign of harassment of the plaintiff, not only in numberous telephone calls to the plaintiff herself every day for a period of three weeks, some of which were late at night, but also calls to her superiors over the telephone, informing them of the debt * * *.' Plaintiff 'was called out plaintiff, not only in numerous telephone where she was employed three times within 15 minutes; * * * she lost a roomer at her rooming house because of the repeated calls, and was threatened with loss of employment unless the telephone calls ceased.' Housh v. Peth, 135 N.E.2d 440, 449.

The Housh decision is supported by Barnett v. Collection Service, 214 Iowa 1303, 242 N.W. 25, and LaSalle Extension University v. Fogarty, 126 Neb. 457, 253 N.W. 424, 91 A.L.R. 1491. These cases involved harassment of the plaintiff-debtor by the defendant-creditor by means of coarse, inflammatory, threatening, or malicious letters producing mental pain and anguish on the part of the plaintiff, which the Iowa and Nebraska courts held actionable. These cases have in common with the Housh case the element of intentional 'systematic campaign of harassment.' See also, Brents v. Morgan, 221 Ky. 765, 299 S.W. 967, 55 A.L.R. 964; Clark v. Associated Retail Credit Men of Washington, D. C., 70 App.D.C. 183, 105 F.2d 62; Quina v. Robert's et al., La.App., 16 So.2d 558; Western Quaranty Loan Co. v. Dean, Tex.Civ.App., 309 S.W.2d 857.

On the other hand, the case of Gouldman-Taber Pontiac Inc. v. Zerbst, 213 Ga. 682, 100 S.E.2d 881, consistent with dictum in Housh, and we think correctly, held that a single letter written by the defendant-creditor to the plaintiff-debtor's employer merely notifying him of the debt did not constitute an actionable invasion of plaintiff's privacy.

'The right of privacy is not absolute but is qualified by the rights of others. * * * A recluse who completely extricated...