Roach v. Harper

• Decision Date: 11 November 1958
• Docket Number: No. 10955,10955
• Citation: 105 S.E.2d 564,143 W.Va. 869
• Court: West Virginia Supreme Court
• Parties: Adeline ROACH v. William W. HARPER.

Page 564

105 S.E.2d 564

143 W.Va. 869

Adeline ROACH v. William W. HARPER.

No. 10955.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 16, 1958.

Decided Nov. 11, 1958.

Syllabus by the Court.

1. The right of privacy, including the right of an individual to be let alone and to keep secret his private communications, conversations and affairs, is a right the unwarranted invasion or violation of which gives rise to a common-law right of action for damages.

2. A declaration in an action for damages founded on an invasion of the right of privacy, to be sufficient on demurrer, need not allege that special damages resulted from the invasion.

3. A declaration in an action for damages founded on an invasion of the right of privacy, to be sufficient on demurrer, need not allege publication of information obtained through the invasion.

William E. Conklin, Chester, for plaintiff in error.

W. W. Ingram, Callie Tsapis, Ruth Turner, Chester, for defendant in error.

GIVEN, Judge.

Plaintiff, Adeline Roach, instituted an action of trespass on the case in the Circuit Court of Hancock County, against defendant, William W. Harper, claiming damages for invasion by defendant of the 'right to privacy' of plaintiff, in that defendant, by means of a hearing device installed by him in an apartment rented by him to plaintiff, overheard 'confidential and private conversations' of plaintiff. Defendant demurred to the declaration, contending that no right of action exists in this State for recovery of damages occasioned by invasion of privacy, that the declaration was insufficient in law in that it contained no allegation to the effect that any conversation heard by defendant was repeated or published, and in that it contained no allegation to the effect that plaintiff suffered any special damages. The trial court sustained the demurrer, and dismissed the action, with prejudice.

The declaration charges that defendant, about August, 1956, rented an apartment to plaintiff, which she thereafter occupied as a residence; that before the renting of the apartment, defendant caused to be installed therein 'some sort of a receiving set or listening device which was connected to a speaker in the office of said defendant', by means of which defendant did 'repeatedly invade the privacy of this plaintiff's said apartment', and, between August 1, 1956 and February 12, 1957, 'maliciously, wantonly, unlawfully and secretly did, on divers occasions * * * listen over said speaker and through the same did hear everything said and done by the plaintiff in her said apartment on said occasions', including numerous personal, social, private and confidential conversations.

We have been cited no case decided by this Court, and have found none, which considers the precise question posed. No statute of this State governs or relates directly to the question. The question, however, has reached many courts of this country, and has been exhaustively and historically considered by numerous law writers and in numerous court opinions. An article, The Right to Privacy, written by Samuel D. Warren and Louis D. Brandeis, published about 1890 in 4 Harvard Law Review 193, perhaps the pioneering article, has been most often referred to and is considered a leading article supporting the theory of the existence of a right of action for the invasion of privacy. Other leading authorities considering the question are: Interests of Personality, 28 Harvard Law Review 343, at 362; The Right of Privacy, 2 Columbia Law Review 437; The Law of Privacy, 12 Columbia Law Review 693; The Right of Privacy, 39 Michigan Law Review 526; Restatement of the Law of Torts, Section 867; 41 Am.Jur., Privacy, Section 2, et seq.; 77 C.J.S. Right of Privacy, § 2 et seq. The existence of the right is refuted in an article published in 3 Northwestern Law Review 1. In the late, very excellent, work of Harper and James, Law of Torts, Vol. 1, page 690, it is stated: 'The 'right of privacy' has had an extensive development since Brandeis and Warren wrote their article. On the whole, the courts have been sympathetic with it in spite of the delicacy of the problems raised and the difficulty of drawing the nice line which separates what the individual may keep to himself and what the public is entitled to know about him. All will admit that some intrusions into one's personal life are so indecent and outrageous and calculated to cause such excruciating mental pain to all but the most callous that it would be a reproach to the law not to allow redress. On the other hand, it is equally clear that society cannot protect the neurotically thin-skinned against those trivial invasions of privacy which the normal person suffers with equanimity. The mores and the law must distinguish the one from the other.'

Before the publication of the Warren-Brandeis article, however, in De May v. Roberts, 46 Mich. 160, 9 N.W. 146, 149, the Court permitted recovery on the basis of invasion of rights of privacy, in a case where the attending physician was responsible for the presence of a young unmarried man during the time plaintiff was in pain of parturition, the Court saying: '* * * The plaintiff had a legal right to the privacy of her apartment at such a time, and the law secures to her this right by requiring others to observe it, and to abstain from its violation. The fact that at the time, she consented to the presence of Scattergood supposing him to be a physician, does not preclude her from maintaining an action and recovering substantial damages upon afterwards ascertaining his true character. In obtaining admission at such a time and under such circumstances without fully disclosing his true character, both parties were guilty of deceit, and the wrong thus done entitles the injured party to recover the damages afterwards sustained, from shame and mortification upon discovering the true character of the defendants.

'Where a wrong has been done another, the law gives a remedy, and although the full extent and character of the injury done may not be ascertained or known until long after, yet in an action brought damages therefor may be fully awarded. * * *'

In Rhodes v. Graham, 238 Ky. 225, 37 S.W.2d 46, 47, the plaintiff alleged invasion of right of privacy by means of unwarranted and secret tapping of a telephone line of plaintiff by defendants. In overruling the demurrer to an amended petition, the Court said: 'The evil incident to the invasion of the privacy of the telephone is as great as that occasioned by unwarranted publicity in newspapers and by other means of a man's private affairs for which courts have granted the injured person redress. Whenever a telephone line is tapped the privacy of those talking over the line is invaded and conversations, wholly proper and confidential, may be overheard. Wire tapping is akin to eavesdropping, which was an indictable offense at common law, and while it has not been made a punishable offense by statute in this state, we conclude that the facts alleged in the petition in this case constitute a wrong done to appellant for which the law affords a remedy by an action for damages.' See Gregory v. Bryan-Hunt Co., 295 Ky. 345, 174 S.W.2d 510.

In McDaniel v. Atlanta Coca-Cola Bottling Co., 60 Ga.App. 92, 2 S.E.2d 810, 816, defendant caused to be installed in a private hospital room, in which plaintiff was a patient, a receiving set which was connected to a set of earphones in a room above that of plaintiff, by means of which defendant could hear conversations of plaintiff. In holding that the petition stated a cause of action, the Court said: 'It is earnestly contended by counsel for the defendant in error that, in the offense of the invasion of the privacy of another, the gravamen or essence of the action is publication or commercialization of the information obtained, and that without such no action is maintainable. There is nothing in the decided cases of this State, however, which indicates any such limitation or qualification of the right, and we think that under the decisions a person's privacy is invaded, in a case like the present, even though the information obtained be restricted to the immediate transgressor. Publication or commercialization may aggravate, but the individual's right to privacy is invaded and violated nevertheless in the original act of intrusion. It is clear that the petition in the present case set out a cause of action.' See Pavesich v. New England Life Insurance Co., 122 Ga. 190, 50 S.E. 68, 69 L.R.A. 101.

In a well considered case, Eick v. Perk Dog Food Co., 347 Ill.App. 293, 106 N.E.2d 742, 743, the Court, after holding that the amended complaint stated a cause of action, reversing the trial court, stated: '* * * These allegations state a cause of action for violation of an interest which has become known as the right of privacy. The question of...