Yoder v. Smith

• Decision Date: 09 January 1962
• Docket Number: No. 50491,50491
• Citation: 112 N.W.2d 862,253 Iowa 505
• Parties: Grover YODER, Appellant, v. Bertel G. SMITH and Mabel W. Smith, d/b/a Iowa Credit Syndicate and Mildred Stone, Appellees.
• Court: Iowa Supreme Court

Page 862

112 N.W.2d 862

253 Iowa 505

Grover YODER, Appellant, v. Bertel G. SMITH and Mabel W. Smith, d/b/a Iowa Credit Syndicate and Mildred Stone, Appellees.

No. 50491.

Supreme Court of Iowa.

Jan. 9, 1962.

Guthrie & Blackburn, Webster City, for appellant.

Denis M. Kelly, Fort Dodge, for appellees.

OLIVER, Justice.

This is an action for damages for invasion of the right of privacy and for libel.

Division I of plaintiff's petition alleged defendants wrote two letters to plaintiff's employer which stated, 'plaintiff was indebted on various accounts, and requested plaintiff's employer to withhold from plaintiff's wages.'

'6. That said letters are an invasion of plaintiff's right to be private in his personal affairs.

'7. That by reason of said communication plaintiff has been grievously injured in the eyes of his employer, his business associates and friends.

'8. That said communications were by their nature, malicious and provocative, and were designed for the sole purpose of extracting money from plaintiff through plaintiff's employer.'

Judgment was prayed for $10,000 actual damages and $7,500 punitive or exemplary damages.

Division II of the petition alleged the letters were false, 'the plaintiff not being indebted in any manner to the defendants or any people they represent, and that by reason thereof said defendants communicated a false and libelous statement to the plaintiff's employer.'

Defendants' Motion to Dismiss the petition stated:

'1. As a matter of law an employee has no right of privacy as to his employer in regard to debts owed by the employee.

'2. As a matter of law the communications alleged by the plaintiff are not libelous statements.

'3. As a matter of law the communications alleged in plaintiff's petition are privileged communications as to both theories of action stated by the plaintiff.'

The trial court sustained the motion to dismiss each division, on the ground:

'It appears from Division I, of the plaintiff's Petition, that the communication was to the plaintiff's employer only, as distinguished from the general public, and since the communication was not made to the general public, it is the opinion of the Court that Division I, of the Petition does not plead a cause of action.

* * *

* * *

'Division II, of the plaintiff's Petition (charging libel) does not allege malice and in view of this fact it fails to allege a cause of action.'

I. In this appeal plaintiff does not contend the dismissal of Division II of his petition, charging libel, was erroneous. Hence, only the dismissal of Division I, which charges interference with plaintiff's right of privacy, need be considered. Interference with the right of privacy has been held actionable in this state in a case not here in point. Bremmer v. Journal-Tribune Publishing Co., 247 Iowa 817, 76 N.W.2d 762. In several states it is governed by statute.

II. Prosser, Law of Tort, 2nd Ed. 1955, 637-639, and his more recent article on Privacy in 48 Cal.Law Rev. 389, state there are four distinct kinds of invasions of four different interests of the plaintiff which are tied together by a common name but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff 'to be let alone'. Dean Prosser lists them as follows:

'1. Intrusion upon plaintiff's seclusion or solitude, or into his private affairs.

'2. Public disclosure of embarrassing facts about the plaintiff.

'3. Publicity which places plaintiff in a false light in the public eye.

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

He points out that the first three torts in his list are primarily concerned with the protection of a mental interest, and that they are only a phase of the larger problem of the protection of peace of mind against unreasonable disturbances.

The alleged invasion here involved is numbered 2 in the foregoing list, public disclosure of embarrassing facts about the plaintiff. Of such an invasion, Dean Prosser states, 48 Cal.Law Rev., 393 and 394:

'First, the disclosure of the private facts must be a public disclosure and not a private one. There must be, in other words, publicity. It is an invasion of the right to publish in a newspaper that plaintiff does not pay his debts or to post a notice to that effect in a window on a public street or cry it aloud in the highway; but except for one decision of a lower Georgia court which was reversed on other grounds, it has been agreed that it is no invasion to communicate that fact to the plaintiff's employer, or to any other individual, or even to a small group, unless there is some breach of contract, trust or confidential relation which will afford an independent basis for relief.'

Decisions of various courts support this statement. Some cases in which the giving of undue publicity to private debts has been held to constitute an invasion of the debtor's right of privacy are cited in an Annotation in 138 A.L.R. 22 at page 91. In Brents v. Morgan, 221 Ky. 765, 299 S.W. 967, 55 A.L.R. 964, a large sign in a public place stated plaintiff owed an old account there and in Trammell v. Citizens News Co., 285 Ky. 529, 148 S.W.2d 708, plaintiff's indebtedness was published in a newspaper.

Almost all decisions on the point agree it is not an actionable invasion of a debtor's right of privacy for one, attempting to collect a bill, to communicate to the debtor's employer the fact of his debt. Most of these decisions are cited in Gouldman-Taber Pontiac, Inc. v. Zerbst, 213 Ga. 682, 100 S.E.2d 881, 882, which states:

'Whether a letter written by a creditor to an employer notifying him that his employee is indebted to the creditor and seeking the employer's aid in the collection of the debt constitutes a violation of the right of privacy of the employee, is a question of first impression in this State. Courts of other jurisdictions in dealing with the question have generally held that such does not give a cause of action for a violation of the right of privacy, their reasoning being that, in giving this information to an employer, it was not giving to the general public information concerning a private matter in which it had, or could have, no legitimate interest, since an employer has a natural and proper interest in the debts of his employees. Voneye v. Turner, Ky., 240 S.W.2d 588(3); Patton v. Jacobs, 118 Ind.App. 358, 78 N.E.2d 789 (cited by the trial court in the case at bar); Lewis v. Physicians & Dentists Credit Bureau, Inc., 27 Wash.2d 267, 177 P.2d 896; McKinzie v. Huckaby, D.C., 112 F.Supp. 642; Housh v. Peth (165 Ohio St. 35, 133 N.E.2d 340); Hawley v. Professional Credit Bureau, Inc., 345 Mich. 500, 76 N.W.2d 835. * * * we are of the opinion that sending the letter in this case to the plaintiff's employer did not violate her right of privacy. The right of privacy is not absolute but is qualified by the rights of others.'

Haggard v. Shaw, 100 Ga.App. 813, 112 S.E.2d 286, 290, follows the Zerbst case as does Tollefson v. Safeway Stores, Inc., 142 Colo. 442, 351 P.2d 274, which cites many of the same authorities. A note in 41 Am.Jur. Privacy, section 30, Cumm.Supp. states:

'It is generally recognized that a creditor has a right to take reasonable action to pursue his debtor and pursuade payment, although the steps taken may result in some invasion of the debtor's privacy. So, it has been held that an employer may be informed of a debt owed by one of his workers.'

It is clear the weight of authority, as well as reason, supports the judgment of the trial court that the petition did not plead a cause of action for invasion of the right of privacy.

Affirmed.

GARFIELD, C. J., and THOMPSON, PETERSON, THORNTON and SNELL, JJ., concur.

BLISS, J., not sitting.

LARSON and HAYS, JJ., concur specially.

LARSON, Justice (concurring specially).

The only issue argued before us in this appeal is whether plaintiff's petition for damages for invasion of his right of privacy states a cause of action upon which recovery may be had in this jurisdiction. The trial court held it did not, and we agree. No consideration is given to appellant's Division II based upon libel, for in his argument he concedes 'that such an infringement may not be actionable as libel * * *' if the infringement is not libel per se, and no special damages are demanded. No such allegations appear in his petition.

Plaintiff alleged, in substance, that defendants wrote plaintiff's employer two letters stating that plaintiff was indebted on various accounts held by them, and requested aid in making collection thereon. He alleged 'That said letters are an invasion of plaintiff's right to be private in his personal affairs', that due to those communications 'plaintiff has been grievously injured in the eyes of his employer, his business associates and friends', and that the communications 'were, by their nature, malicious and provocative, and were designed for the sole purpose of extracting money from plaintiff through plaintiff's employer.'

According to the record, defendant filed an affidavit stating that it was a partnership engaged in collecting delinquent accounts, that it had for collection an account against one Grover Yoder who it learned was employed at Naden Industries, and that it sent two letters to the employer, one on the 7th and the other on the 15th of February, 1961. Attached were copies of those communications as follows:

'Dear Sir:

'May we ask your assistance?

'We realize this is purely a personal matter and a question of this sort poses a difficult labor relation problem, but since an employee in debt is seldom a happy or efficient one, we felt you might have some suggestions to offer us.

'You see, this employee of yours has failed to complete payments on merchandise received from a creditor whose accounts have been turned to us, even though we have offered the most lenient terms possible for clearing up this over indebtedness, th...