Tollefson v. Safeway Stores, Inc.

• Decision Date: 18 April 1960
• Docket Number: No. 18996,18996
• Citation: 142 Colo. 442,351 P.2d 274
• Parties: Carl L. TOLLEFSON, Plaintiff in Error, v. SAFEWAY STORES, Incorporated, a foreign corporation, and John E. Hyland, Defendants in Error.
• Court: Colorado Supreme Court

Page 274

351 P.2d 274

142 Colo. 442

Carl L. TOLLEFSON, Plaintiff in Error, v. SAFEWAY STORES, Incorporated, a foreign corporation, and John E. Hyland, Defendants in Error.

No. 18996.

Supreme Court of Colorado, In Department.

April 18, 1960.

Harold J. Heafer, Denver, for plaintiff in error.

McNichols, Dunn & Nevans, Edward E. Nevans, Jr., Denver, for defendant in error John E. Hyland.

Holland & Hart, William C. McClearn, H. Richard Beresford, Denver, for defendant in error Safeway Stores, Inc.

KNAUSS, Justice.

We shall refer to the parties as they appeared in the trial court, or by name.

Tollefson, apparently hard-pressed in his effort to state a claim, filed a second amended complaint labeled 'Invasion of Privacy; Slander, Breach of Contract and Infringement of Constitutional Rights.' He sought damages on each of these claims in the sum of $6,000, together with exemplary damages in the sum of $4,000 on each claim. To the second amended complaint defendants filed motions to dismiss each of the counts thereof for failure to state a claim upon which relief could be granted. These motions were sustained, the action dismissed with prejudice, and Tollefson is here on writ of error.

From the record it appears that on December 9, 1955 Tollefson was employed by a Heating Company and received from his employer a payroll check which he thereafter endorsed and cashed at a Safeway store in Denver. Shortly thereafter Tollefson's employer was adjudicated a bankrupt and the check was not paid. In January 1957 Tollefson was employed as a policeman in Denver. Safeway Stores placed this check with defendant Hyland for attention and collection and in November 1957 the latter contacted Tollefson advising him that the check had not been honored and demanded payment. Tollefson informed him that no action would be taken in regard thereto until after he had consulted a lawyer. Some ten days later Hyland telephoned Tollefson's residence and informed his wife that if payment was not made Tollefson's job as a police officer would be in jeopardy. It is alleged that thereafter in January 1958 Hyland contacted the City Auditor of Denver advising him, as quoted from plaintiff's brief 'He (the Auditor) could avoid having to be served with a garnishment writ on plaintiff's salary if plaintiff were informed by appropriate city officials that they knew of the situation and if plaintiff were further advised that the city official looked unfavorably upon such matters and ensuing garnishments.' It is then alleged that the City Auditor contacted the Manager of Safety, who in turn directed plaintiff's sergeant to contact plaintiff and direct him to justify his position. Thereupon counsel for plaintiff advised the sergeant that in his opinion no liability rested on Tollefson to pay said check. No further action was taken by anyone.

Tollefson summarizes his claims for damages in his brief as follows: '* * * these injuries entail mental apprehension, humiliation, embarrassment, mental suffering arising from being subjected to ridicule, scorn and mental suffering arising from the unwarranted attack upon his credit reputation.'

Plaintiff's main contention is based on an alleged 'Invasion of Privacy' occasioned by the acts and conduct of the defendants as above set forth.

The latest pronouncement of the rule here urged is found in the case of Gouldman-Taber Pontiac, Inc. v. Zerbst, 213 Ga. 682, 100 S.E.2d 881, 883. It was there held that a creditor who wrote a letter to an employer notifying him that the employee involved was indebted to creditor, and seeking the employer's aid in collecting the debt did not violate the employee's right of privacy. The Georgia courts recognize a right of action for invasion of privacy. Many other courts do not. In the Gouldman-Taber case, supra, the court said: 'The right of privacy is not absolute but is qualified by the rights of others. 'No individual can live in an ivory tower and at the same time participate in society and expect complete noninterference from other members of the public.' Voneye v. Turner, supra [Ky., 240 S.W.2d 588] * * *. But one who, like the plaintiff, is employed by a large corporation, who is an active participant in the business world, who has an automobile and drives it upon the highways, has it serviced and repaired, and obtains credit for goods and services in repairing her car, may expect reasonable conduct on the part of those with whom she does business and from whom she gets credit. * * * She may expect her employer to want her to...