This is an appeal from a judgment of the Common Pleas Court of Franklin County. The action is one in in
Plaintiff, Mary LeCrone (nee Dodge), was the wife of Clayton LeCrone. They resided at 230 Rosslyn Avenue, Columbus, Ohio, for about twelve years. In early 1960, a divorce action was pending, and a court hearing had been held in February. Mrs. LeCrone commenced the proceedings, and the divorce was eventually awarded her husband in late 1960. However, in March 1960, Mrs. LeCrone had moved from the Rosslyn address to an apartment at 1494 North High Street, Columbus, Ohio, which was about seven or eight miles from Rosslyn Avenue. While the divorce had not been granted at that time, there had' been a legal separation.
After moving, she requested telephone service from the defendant, The Ohio Bell Telephone Company. She subscribed for a private line in her own name. At that time, the company’s representative questioned her about her relationship to her husband. She informed the representative that she was responsible for her own debts and had to pay her own phone bill, that she was employed, and that she was getting a divorce. The billings for the line were sent to her in her name and she paid them. Her husband did not pay them.
On May 11, 1960, a company service representative received a request for an extension on Mrs. LeCrone’s line, the extension to be placed at her husband’s home at 230 Rosslyn Avenue. The person making the request is not identified in the record. The service representative merely testified that it was a male and that she did not know who it was of her own knowledge. The telephone installation man testified that he installed the extension at Rosslyn, and that he talked to a man there who identified himself as Mr. LeCrone. This extension service was provided by simply placing a “jumper” on the company’s equipment at its central office from Mrs. LeCrone’s line to another and then installing a phone at the Rosslyn address. No one went to Mrs. LeCrone’s apartment or dealt with the wires at her apartment. No one notified Mrs. LeCrone of the exten
Mrs. LeCrone could not say “of her own knowledge” that anyone listened to her conversations, and she expressly disclaimed that anyone connected with or employed by the company listened to her conversations. The conversations during this period included talks with friends and with her attorney as to the pending divorce and property settlement. There is also testimony as to distress, anguish, nervousness and other effects of the occurrence.
Dean William L. Prosser has pointed out that in the development of the right of privacy the courts today generally recognize four distinct types of invasion which, while overlapping, are yet quite distinct. One of these is the intrusion upon a person’s seclusion or private affairs. See Prosser, Privacy, 48 Cal. L. Rev., 383 (1960). The Ohio Supreme Court has described this invasion as “the wrongful intrusion into one’s private activities in such manner as to outrage or to cause mental suffering, shame or humiliation to a person of ordinary sensibilities.”
Housh
v.
Peth
(1956),
As the
Eoush case
states, the act must be one which is offensive or objectionable to the reasonable man. It is also necessary that the thing intruded upon or pried into is, and must be entitled to be, private. The interest protected is primarily a mental one rather than economic or pecuniary. It is an intentional tort analogous to trespass and battery in protection of personal integrity. Actual damage is not necessary. Proof of the unjustified invasion entitles the plaintiff to at least
As a general proposition, eavesdropping on phone conversations of another by unauthorized mechanical means, or a so-called “tap,” is the kind of act or conduct that fits the definition of an intrusion or prying into another’s private affairs. Such conduct generally would be criminal, a violation of public utility law, a clear invasion of the subscriber’s right to exclusive use and, in our opinion, an affront to the sensibilities of a reasonable man. The decision of this court in an earlier appeal of this case and the decisions of other states so hold.
LaCrone
v.
Ohio Bell Telephone Co.
(1961),
The questions presented by the facts in this case are: (1) There being no act of physical trespass by anyone, and no eavesdropping by any employee or agent of appellee company, has the company itself committed an act of invasion of privacy? Plaintiff contends that the mere fact of installation, regardless of the interception of conversations, is an invasion. (2) Is the defendant a joint tortfeasor with several liability as an aider in an actionable invasion of privacy by the husband, Clayton LeCrone? As discussed infra, this requires proof of an actionable invasion by the third person and substantial material assistance by defendant with knowledge. The subsidiary' questions under this analysis are:
(a) Did the husband commit an actionable invasion of plaintiff’s privacy? There is an evidentiary question of the sufficiency of proof that the husband did eavesdrop. Assuming that, there is the legal question of the effect of the relationship
(b) While it is apparent that the installation of the extension was substantial aid in the husband’s acts, is there sufficient evidence to hold the corporation to knowledge of an unlawful use? \
Returning to the first question, plaintiff has earnestly contended that the fact of an unauthorized connection on her line is an invasion regardless of whether anyone listens to a conversation. Reliance is placed on Judge McLaughlin’s opinion in the earlier appeal,
We think it significant that in each of the cases cited the facts show that conversations were intercepted. In considering them it is also well to note that, as Dean Prosser has pointed out in his article, several distinct acts of invasion are frequently combined in a particular occurrence. For example, in many instances, the conduct in installing equipment, or otherwise preparing to eavesdrop, will itself constitute a trespass and a physical invasion of another’s seclusion regardless of eavesdropping. In the present case, no physical intrusion was made upon plaintiff’s premises. All acts which enabled or created the capacity to eavesdrop occurred off the premises and with reference to defendant’s equipment and Clayton LeCrone’s house. This case is unique in that respect. The fact of a tap may, as
The mere making of the connection might constitute a breach of contract by defendant. The threat to so do might possibly form the basis for injunctive relief. However, in our opinion, the only possible act which could constitute an invasion in the present case is the eavesdropping itself, and the connection or tap here constitutes only a preparation for that invasion of privacy.
Accordingly, we conclude that any liability of the defendant on these facts must rest on the second ground alleged in the amended petition, i. e., that defendant “intentionally * * * by such means, did allow persons unauthorized by the plaintiff to listen to and intercept plaintiff’s private telephone conversations. ’ ’
One who materially aids or abets a wrongful act by another may be as responsible as the one who commits the act, so as to impose liability upon the former to the same extent as if he had performed the act himself. See discussion in
Kuhn
v.
Bader
(1951),
As previously stated, under the facts here, the only act which can constitute an invasion is that of interception of or eavesdropping upon conversations. Has plaintiff presented sufficient evidence to raise an issue of fact as to the husband’s interception of calls? Listening is a product of nerve and mind. It cannot be directly proved but must be established by inference from other facts. Obviously, the best circumstantial proof would be the repeating of information which could not otherwise be obtained. • Likewise, it would be helpful if there was an eyewitness to the person holding the phone to his ear. However, in the nature of an invasion by eavesdropping through mechanical means, we cannot expect such evidence to be readily
The most difficult problem in this case is the question of whether plaintiff had a right to privacy as against her husband. The existence of a marital relationship obviously has great significance with respect to the concept of the integrity of the person. On the other hand, we no longer live in the 17th century era of the husband’s prerogatives. The ancient common-law concepts were radically changed in Ohio by various Married Women’s Acts. Some of these were passed early in the 19th century and the concepts have been undergoing a constant process of development through statutory enactment and judicial interpretation. An extensive discussion of the subject of husband’s and wife’s rights is found in the opinion of Judge Matthias in
Damm
v.
Elyria Lodge No. 465, Benevolent Protective Order of Elks
(1952),
It may be conceded that as to privacy a husband and wife are not on the same footing as strangers. See 28 Ohio Jurisprudence (2d), 124, Husband and Wife, Section 4. However, there is no occasion here to consider more than the use of a private telephone installed in a separate building in the wife’s name and on her credit alone. We think it clear that under Sections 3103.05 and 3103.07, Revised Code, the wife could contract with defendant for the use of the telephone line and could obtain contract right to exclude the use of it by her husband without her permission. Various utility statutes are cited by defendant in his answer and briefs concerning the use of a subscriber’s instrument by the family and household. These statutes merely deal with utility classifications of users for the determination of rates and similar purposes. They do not circumscribe the subscriber’s and company’s right to contract for more exclusive use. We see no essential difference between a wife’s right to make such a contract and a wife’s contract with a bank for a safety deposit box. Similarly, under the statutes she may purchase and have exclusive use of an auto, or contract for services such as an individual checking or savings account.
Even so, we make no conclusion in this case as to the wife’s rights as against her husband with respect to exclusive use of such facilities where the parties are living together in cohabitation. In the present case, the plaintiff and her husband were living apart. On six occasions Mrs. LeCrone testified that they were living apart and had a legal separation. We recognize that Section 3103.04, Revised Code, prevents a spouse excluding the other from the dwelling except upon court order. Section 3103.06, Revised Code, also limits the power of a husband and wife to make a contract altering their legal relations. Under the statute, a husband and wife cannot change the essential obligations and rights of the marriage relation
ivliile they live together.
However, the marriage relationship may be changed by a reasonable agreement entered into after the parties have separated, or when they contemplate an immediate separation. See 28 Ohio Jurisprudence (2d), 122, Husband and Wife, Section 2. Under an express exception of Section 3103.06, Revised
We, therefore, conclude that the plaintiff presented a prima facie case of an actionable invasion of privacy by her husband. The remaining question is the liability of defendant for knowingly aiding in that tort.
The record shows that when Mrs. LeCrone requested service from defendant, the corporation’s service representative questioned her with respect to her husband and their relationship to each other. In response to those questions, the company was told that she was responsible for her own debts, that she had to pay her own phone bill, that she was employed and where, and that she was getting a divorce. It is pertinent to note too that Mrs. Raymond, the service representative who took the “order” for the extension, testified that her duties were to take any orders for service. The information provided the corporation is, in our opinion, more than enough to put any
This is a most difficult case, and it is not with unmixed feelings that we have reached this result. The decision reflects the specific factors present here — factors which the company’s policy simply ignored at the time the events occurred. They are factors which would not ordinarily be found in the average instance of one spouse ordering service for a line held in another’s name. We, therefore, do not foresee the horrendous results suggested. Dire predictions of excessive litigation and substantial liability always accompany any important decision affecting business practices. In the present case, it might be noted that there is no allegation or proof of special pecuniary loss, nor do we believe that at present there is sufficient evidence to justify punitive damages. It is not an aggravated case involving publication or other use of information obtained. Yet, in our opinion, the case represents an important principle with
The judgment of the Common Pleas Court is reversed and the cause is remanded for further proceedings.
Judgment reversed.