Peterson v. Idaho First Nat. Bank

• Decision Date: 08 December 1961
• Docket Number: No. 9027,9027
• Citation: 83 Idaho 578,92 A.L.R.2d 891,367 P.2d 284
• Parties: , 92 A.L.R.2d 891 Curtis D. PETERSON, Plaintiff-Appellant, v. IDAHO FIRST NATIONAL BANK, a corporation, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 284

367 P.2d 284

83 Idaho 578, 92 A.L.R.2d 891

Curtis D. PETERSON, Plaintiff-Appellant, v. IDAHO FIRST NATIONAL BANK, a corporation, Defendant-Respondent.

No. 9027.

Supreme Court of Idaho.

Dec. 8, 1961.

McCarthy & Adams, Lewiston, for appellant.

Cox, Ware, Stellmon & O'Connell, Lewiston, for respondent.

TAYLOR, Chief Justice, and McFADDEN, Justice.

Plaintiff (appellant) brought this appeal from a judgment of dismissal entered by the trial court on motion of defendant (respondent.)

The complaint was filed March 23, 1960. Motion to dismiss on the ground that the complaint fails to state a claim upon which relief can be granted, was filed April 13, 1960. Order dismissing the action, without leave to amend and with prejudice, was filed January 10, 1961. Notice of appeal and praecipe were filed January 12, 1961. March 9, 1961, the following order was made and filed by the district judge:

'It being represented to the Court that additional time is required for the preparation of the Clerk's transcript on appeal in the above entitled cause, It Is Hereby Ordered:

'That the time for preparing and lodging said transcript is extended 90 days from the date hereof.'

The clerk's transcript was filed in this court April 18, 1961. No extension of time for the filing of the transcript was granted by this court or by any justice thereof. Appellate rule 32. On April 24, 1961, the cause was set to be heard on the merits at Lewiston on May 10, 1961. April 28, 1961, defendant filed a motion for an order dismissing the appeal on two grounds: first, that the certificate, required by rule 35 of the appellate rules of this court, as to the papers submitted to and used by the district judge on the hearing of the motion to dismiss, was not attached to or made a part of the transcript; and, second, that the transcript was not filed within 60 days of the filing of the praecipe. Appellate rule 29. The day for hearing on the merits being near, when the motion to dismiss the appeal was filed, this court on May 1, 1961, suspended the operation of rule 14, and set the motion to dismiss for hearing on May 10, 1961, at the time of the hearing on the merits.

At the hearing, plaintiff presented a certificate, signed by his counsel, which was thereupon signed by defendant's counsel and filed with the clerk. The certificate complies with rule 35 as to form and substance and, although filed late, no prejudice appearing, is sufficient. Julien v. Barker, 75 Idaho 413, 272 P.2d 718; Owen v Taylor, 62 Idaho 408, 114 P.2d 258; Gloubitz v. Smeed Bros., 52 Idaho 725, 20 P.2d 198.

May 18, 1961, plaintiff filed a reply to defendant's motion for dismissal of the appeal. Prior to this filing plaintiff had been relying upon the order of the trial judge extending time for filing the clerk's transcript, and at the hearing made the contention that under appellate rule 32, which provides that an extension of the time to file the transcript may be granted 'by order of a Justice', the term 'justice' in a generic sense includes the trial judge. We do not so construe the rule.

In view of the shortness of the time between the perfection of the appeal and the hearing thereof, we have considered the reply filed by plaintiff on May 18th. From this it appears that the delay in the preparation of the transcript was due to the illness of the deputy clerk, whose duty it was to prepare the same, and the fact that such deputy had three other transcripts to prepare at the same time, and that neither appellant nor his counsel was responsible therefor. Appellate rule 33. See Fischer v. Davis, 24 Idaho 216, 133 P. 910.

The motion to dismiss the appeal is denied.

This action was brought to recover damages for an alleged violation of the right of privacy. Plaintiff alleged that at the time involved he was a depositor in the Lewiston office of the defendant bank and,

'That in the month of January, 1960, said Bank, through the officials at said office, with malice and without authorization of the plaintiff, violated the rights of privacy of the plaintiff by disclosing information concerning transactions involving his personal bank account at said bank, and that plaintiff herein was greatly damaged thereby.'

A hearing was had upon the motion of the defendant to dismiss the action on the ground that the complaint failed to state a claim upon which relief could be granted. Depositions of the manager of the Lewiston office of the bank and an employee of that office were submitted to and considered by the court upon the hearing. The motion was granted and this appeal was brought from the order dismissing the action with prejudice.

At the time involved, plaintiff was the manager of the Lewiston office of the Family Finance Corporation, which was also a depositor in the Lewiston office of the defendant. In the fall of 1959 a managing officer from the home office of the Family Finance Corporation at Denver, Colorado, called at the bank and asked the manager to advise him at any time it should appear that one of his employees 'might be doing anything that might bring discredit to the company.' On January 12, 1960, the manager of the bank mailed to the officer of the Family Finance Corporation a letter as follows:

'Personal and confidential. George P. Biagiotti, Room 601, Railway Exchange Building, Denver 2, Colorado. Dear Mr. Biagiotti: Perhaps it would be wise for you and I to get together in the very near future. The personal finances of your local representative have deteriorated to the point where much unfavorable criticism is being voiced. We have returned a large number of checks for not sufficient funds, and I fear some of the holders of these checks could take legal action. Yours very truly, R. H. Clay, Manager.'

On January 14 and 15 Mr. Biagiotti called at the bank, was shown the ledger record of plaintiff's personal account and was advised of certain checks drawn by plaintiff which the bank had returned to local business drawees, for 'not sufficient funds.' These disclosures were made without the knowledge or consent of the plaintiff.

In his deposition the manager of the bank testified it was against the policy of the bank to give out information concerning a depositor's account, but that the manager had discretionary authority to do so in certain cases. We have no statutory law prohibiting or regulating the furnishing of such information by banks, nor defining or protecting the 'right of privacy' claimed by plaintiff.

This 'right of privacy' was forcefully brought to the attention of the bench and bar and the public in an article appearing in 4 Harvard Law Review 193 by Warren and Brandeis in 1890. Recently, Professor Prosser re-evaluated this article in light of its experience in the courts throughout the seventy years since its publication. Privacy, William L. Prosser, 48 California Law Review 383. See also Prosser on Torts, 2nd ed., p. 635.

Professor Prosser classified these types of cases into four categories (48 Cal. Law Review, Privacy):

'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.

'4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness.' at p. 389.

Concerning the first classification it is stated:

'It appears obvious that the interest protected by this branch of the tort is primarily a mental one. It has been useful chiefly to fill the gaps left by trespass, nuisance, the intentional infliction of mental distress, and whatever remedies there may be for the invasion of constitutional rights.' at p. 392.

Concerning the second classification, certain limits appear fairly well marked out:

'First, the disclosure of the private facts must be a public disclosure and not a private one. There must be, in other words, publicity.' at p. 393.

'Second, the facts disclosed to the public must be private facts, and not public ones.' at p. 394.

'Third, the matter made public must be one which would be offensive and objectionable to a reasonable man of ordinary sensibilities.' at p. 396.

As to the third classification, it is stated:

'* * * The interest protected is clearly that of reputation, with the same overtones of mental distress as in defamation.' at p. 400.

Concerning the fourth classification, it is necessary that there shall have been an appropriation of an aspect of the plaintiff's identity, and of his name or likeness to the defendant's own advantage.

In comparing these four classifications, Professor Prosser states:

'Taking them in order--intrusion, disclosure, false light, and appropriation--the first and second require the invasion of something secret, secluded or private pertaining to the plaintiff; the third and fourth do not. The second and third depend upon publicity, while the first does not, nor does the fourth, although it usually involves it. The third requires falsity or fiction; the other three do not. The fourth involves a use for the defendant's advantage, which is not true of the rest. Obviously this is an area in which one must tread warily and be on the lookout for bogs.' Privacy, Prosser, 48 Cal.Law Review, 383, at 407, 408.

The American Law Institute defined the right thus:

'A person who unreasonably and seriously interferes with another's interest in not having his affairs known to others or his likeness exhibited to the public is liable to the other.' 4 Restatement of Torts, § 867.

In Brents v. Morgan, 221 Ky. 765, 299 S.W. 967, 55 A.L.R. 964, the right of privacy is defined:

'* * * it is generally recognized as the right to be let alone, that is, the right of a person to be free from unwarranted publicity, or the right to live without unwarranted interference by the public about matters with which the public is not necessarily concerned.' 299 S.W. at 969, 970.

California has recognized the right of...