St. Julien v. South Cent. Bell Telephone Co.

• Citation: 433 So.2d 847
• Decision Date: 25 May 1983
• Docket Number: No. 83-66,83-66
• Parties: Arthur ST. JULIEN, et al., Plaintiffs-Appellants, v. SOUTH CENTRAL BELL TELEPHONE CO., et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 847

433 So.2d 847

Arthur ST. JULIEN, et al., Plaintiffs-Appellants, v. SOUTH CENTRAL BELL TELEPHONE CO., et al., Defendants-Appellees.

No. 83-66.

Court of Appeal of Louisiana Third Circuit.

May 25, 1983.

Rehearing Denied July 14, 1983.

Sylvia Cooks, Lafayette, for plaintiffs-appellants.

Landry, Watkins & Bonin, Anne G. Stevens, New Iberia, for defendants-appellees.

Before DOUCET, YELVERTON and KNOLL, JJ.

DOUCET, Judge.

Plaintiffs filed suit alleging that defendants violated their right to privacy when an employee of South Central Bell, assisted by an apartment complex employee, entered their apartment without consent or authority and wrongfully seized telephone units. From an adverse judgment, plaintiffs appeal. We reverse in part and affirm in part.

On October 15, 1981 plaintiffs, Arthur J. St. Julien and Charlotte B. St. Julien, occupied an apartment unit by virtue of a lease at Bridgeway Apartments in St. Martinville, Louisiana. A representative of South Central Bell Telephone Company, defendant herein, appeared at the manager's office of the apartments, requesting a key to the unit occupied by the plaintiffs. A secretary employed by the apartments, Sandra Davis, accompanied the telephone company employee to the unit. Both the telephone company employee and the secretary entered into the St. Julien's apartment by use of a key allegedly in the possession and control of Tilden Bonin, d/b/a Bridgeway Apartments, Inc., also named defendant herein. Plaintiffs were not present at the time and did not consent to the entry at any time.

Plaintiffs returned home on this day only to discover that an intruder had entered and searched their apartment. There were no notices posted by the South Central Bell employee or the apartment employee following the entry. Plaintiff determined, on closer inspection, that their apartment had been searched and the telephones located in the bedroom closet had been removed. Through further investigations plaintiffs discovered that it was the result of the action of a South Central Bell Telephone Company employee and an apartment employee. The equipment removed was owned by the telephone company and leased to the St. Juliens pursuant to a subscription agreement.

Defendant Tilden Bonin admitted in answer that a representative of South Central Bell was granted permission by the owner of the apartment and entered the apartment rented to Arthur St. Julien and removed their telephones. The Telephone Company sought to justify its action relying in part on its tariff filed with the State and the fact that plaintiff had failed to pay a past due telephone bill. At the conclusion of the plaintiff's case in chief the trial judge dismissed the action against Tilden Bonin d/b/a Bridgeway Apartments, Inc., finding that plaintiffs had failed to establish a connection between Bridgeway Apartments, said defendant, and the invasion. At the conclusion of the trial, the trial judge dismissed plaintiff's demands and granted defendant's reconventional demand based on the past due telephone bill in the sum of $58.88. This appeal followed.

Appellants assign two specifications of error: (1) the trial judge erred in failing to find that defendants committed a tortious act for which recovery is allowed under the laws of this state and (2) the trial judge erred in dismissing this suit against Tilden Bonin d/b/a Bridgeway Apartments, Inc.

Appellee contends that a tariff, required by law to be filed, grants the Telephone Company the right to enter a subscriber's premises and remove its property without consent or judicial authorization. Plaintiffs contend that it was never the intent of the legislature or the Public Service Commission, in accepting tariffs, to grant them the same status as statutory law, for such would be a violation of plaintiff's constitutionally protected rights to privacy and procedural due process, under color of state law.

For reasons to follow, we find that South Central Bell Telephone Company invaded plaintiffs' right to privacy entitling them to recovery of damages.

In Van Wren v. Hugh Flynn, 34 La.Ann. 1158 (1883) the Louisiana Supreme Court observed that invasion of a man's house is a gross outrage "for which courts of justice must either grant redress or sanction the personal exaction of satisfaction by violence." However, prior to 1890, courts did not recognize a distinct right to privacy per se but rather gave effect to such rights under the auspices of principles of property, contracts, libel, assault, confidential relations, etc. Comment, Injunctive Protection of Personal Interest--A Factual Approach, 1 La.L.Rev. 665 (1939), Pound, Revival of Comparative Law, 5 Tul.L.Rev. 1, 4 (1930). It was not until the publication of a law review article in 1890, by Warren and Brandeis (later Justice Brandeis), that the right to privacy was introduced and defined as an independent "right to be let alone" and distinctive principles upon which it is based were formulated. Warren & Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193 (1890). See also: Prosser, Privacy, 48 Cal.L.Rev. 383 (1960); Lusky, Invasion of Privacy: A Clarification of Concepts, 72 Colum.L.Rev. 693 (1972), Comment, The Emerging Tort of Intrusion, 55 Iowa L.Rev. 718 (1970); Annot. The Right to Privacy, 14 A.L.R.2d 750; Annot. Uninvited Entry as Invasion of Privacy, 56 A.L.R. 3rd 434; Comment, Invasion of Privacy--Unreasonable Intrusion--A Weapon Against Intrusions Upon our Shrinking Right of Privacy, 47 Notre Dame L.Rev. 1067 (1972).

In Love v. Southern Bell Telephone and Telegraph Co., 263 So.2d 460, 56 A.L.R.3d 424 (La.App. 1st Cir.1972) writ refused 262 La. 1117, 266 So.2d 429 (1972), the court, quoting in part from Hamilton v. Lumbermen's Mutual Cas. Co., 82 So.2d 61 (La.App. 1st Cir.1955), reviewed the evolution of the right to privacy as follows:

"What is the right of privacy?

"It has been defined in many different ways, but each definition conveys one meaning.

"It has been defined as 'the right to be let alone' and as 'the right to live one's life in seclusion, without being subjected to unwarranted and undesired publicity.' According to another definition, it is 'the right to live without unwarranted interference by the public about matters with which the public is not necessarily concerned.' (See: Banks v King Features Syndicate, DC NY, 1939, 30 F Supp 352; Brents v Morgan, 1927, 221 Ky 765, 299 SW 967 ; Jones v Herald Post Co., 1929, 230 Ky 227, 18 SW2d 972; cited in 138 ALR 24; 77 CJS [Right of Privacy, § 1, p] 396, n[ote] 1.)"

* * *

"Louisiana also recognizes this right.

"In 138 ALR 28, it is stated:

" '... the preponderance of authority supports the view that, independently of the common rights of property, contract, reputation, and physical integrity, there is a legal right called the right of privacy, the invasion of which gives rise to a cause of action.'

* * *

"The first case in which Louisiana recognized and enforced what was apparently essentially the right of privacy is Denis v Leclerc, 1811, 1 Mart, OS, 297.

"In the Leclerc case, this Court affirmed the lower Court's injunction of the publication by the defendant of a private letter written by the plaintiff and also affirmed the judgment for contempt incurred by the defendant for placing an advertisement in the paper inviting the public to come to his office and view the letter.

"Of course, in the Leclerc case, as in the early English cases, the right of privacy was enforced as a quasi-property right, citing the old English case of Pope v Curl, 2 Atk 342, 26 Eng Rep 608, 1741, mentioned supra herein. (See: Comment: 1 Louisiana Law Review 665, 680.)

"The Leclerc case is discussed as a forerunner of the modern concept of the right of privacy in a discussion by Professor Dale E. Bennett to be found in 1 Louisiana Law Review 665, at page 680. An author who agrees with Professor Bennett states, in 21 Tulane Law Review 289, at page 291:

" 'The right of privacy has long been established in Louisiana. As early as 1811, the right was invoked although not specifically described as such. Denis v Leclerc, 1811, 1 Mart OS, [La] 297; ...' (Emphasis supplied.)"

The Right of Privacy in Louisiana is the subject of an article found at 28 LLR 469. After reiterating the various definitions as quoted above from Hamilton, the author states: (28 LLR 469, 470)

"These definitions because of their very broad language are of little, if any, assistance to a court in resolving a case involving the right of privacy. In order reasonably to limit the area of protection afforded under the right of privacy, the courts in Louisiana, either expressly or tacitly, have distinguished between 'actual' and 'actionable' invasions of the right of privacy with legal redress being granted only when the invasions are deemed to be actionable. Since this distinction is the crucial determinate of whether recovery will be allowed, much discussion will be devoted to the test used by the courts to ascertain whether certain conduct is an actionable invasion of the right of privacy. As employed by the courts, the word 'actual' describes conduct for which no recovery will be granted even though such conduct may seem to invade the right of privacy as that right has been so broadly defined.

"It is evident that malicious intent is not necessary in order to have an actionable invasion of the right or privacy, and that truth and the absence of malice are not defenses to such an action. In determining the criterion for liability the courts have looked to what was done rather than the precise motives which accompanied the acts. A few Louisiana decisions have referred specifically to section 867 of the American Law Institute's Restatement of Torts as the test to be used in determining whether certain conduct constitutes an actionable invasion of the right of privacy. Section 867 provides:

" 'A person who unreasonably and seriously interferes with another's interest in not having...