This is аn appeal from a judgment of the Franklin County Court of Common Pleas sustaining a motion for a directed verdict in favor of defendant, appellee herein, at the conclusion of all the evidence.
Plaintiffs are the surviving spouse and children of Jean McCormick, deceased, who, prior to her death, was a patient of defendant, an osteopathic physician. She was hospitalized on February 26, 1969, and died on March 13,1969. At the time of her hospitalization, defendant’s office was contacted with respect to her hospitalization and information obtained as to the medication she was receiving. Notwithstanding this, on April 23, 1969, a communication was mailed to the decedent by defendant’s office, stating : “A check-up will keep you smiling * * * Missed You! ” Immediately following the receipt of this communication, the plaintiff surviving spouse mailed a handwritten mes
Thereafter, an action was commenced against defendant in connection with the death of decedent. Defendant was served with a summons in that case, on February 25, 1970. Despite this, on March 4, 1970, a second communication was mailed from defendant’s office addressed to the decedent which contains inter alia, the following statement: “Remember, every woman can be beautiful and a joy to all those around her, if she wishes.” In June of 1971, a third communication was mailed from defendant’s office, but this communication was not addressed to decedent but rather to her daughter, plaintiff Nicole McCormick. This communication consisted of three pages and included the same statement quoted above from the second communication. Plaintiffs contend that these communications under the circumstances give rise to an actionable invasion of their privаcy.
Defendant admitted that the three communications were mailed from his office but denied any personal knowledge of the mailings. He testified that the April 1969 communication was a reminder sent by his staff of a missed appointment; that the March 1970 communication was “one of our annual letters that we send to our patients of record”; and that the June 1971 communication was “an annual mailing to patients of record.” He further testified that he had no personal knowledgе of the death of the decedent until served with a summons on February 25, 1970, but admitted in answer to an interrogatory, apparently posed in another action, to the question as to when he learned of the death of decedent, the following: “I have no specific recollection but believe it was several months after her death.” He further testified that he did not recall receiving the handwritten letter from the plaintiff surviving spouse and to his knowledge had never seen it.
The trial court overruled motions for a directed verdict at the conclusion of the opening statement and at the conclusion of plaintiffs’ case, but sustained a motion by defendant for a directed verdict at the conclusion of all the
“The trial court erred in sustaining defendant-appellee’s Motion for a Directed Verdict at the close of all the evidence.”
At the outset, it must be noted that there was some confusion on the part of the trial court as to the proper test to be applied in ruling on the motion for a directed verdict. This is reflected by the following statement of the trial court during the ruling on the motion:
“Now, of course, the test that I must apply at the end of all the evidence is whether or not reasonable minds can come to but one conclusion, and that conclusion is adverse to the Plaintiff in this particular case. The test is diffеrent at the end of an opening statement; the test is also different at the end of the Plaintiffs’ case; the test at that time is a prima facie case, and so now the test is whether reasonable minds can differ.”
There are two problems with the trial court’s statement : First, the test to be applied in ruling on a motion for a directed verdict is the same regardless of the stage of the proceedings. Second, the trial court did not mention the requirement that the evidence must be construed most strongly in favor of the party against whom the motion is directed. Civ. E. 50(A) (1) provides:
“A motion for a directed verdict may be made on the opening statement of the opponent, at the close of the opponent’s evidence or at the close of all the evidence.”
Civ. E. 50(A) (4) sets forth the test to be applied by the trial court in ruling upon such a motion for a directed verdict as follows:
“When a motion for a directed verdict has been propеrly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidеnce submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue.”
The same test is to be applied regardless of the stage
“When in a jury trial a court directs a verdict or grants judgment without or contrary to the verdict of the jury, ihe court shall statе the basis for its decision in writing prior to or simultaneous with the entry of judgment. Such statement may be dictated into the record or included in the entry of judgment.”
The statement of the trial court leads this court to the conclusion that the trial court did not сonstrue the evidence most strongly in favor of plaintiffs. The trial court accepted as true defendant’s testimony that the 1970 and 3971 communications were communications sent by defendant “to bis list of patients, whether active or inactive as a part of an annual mailout” However, the trier of the facts, in ibis case the jury, is entitled to believe or disbelieve all or part of the testimony of any witness. The only evidence that these communications were annual mailouts was the testimony of defendant himself. However, the evidence indicates that the 1970 communication addressed to the decedent was mailed approximately one week after defendant was served with summons in the other action. The 3971 communication was addressed to the decedent’s daughter who bad not been a patient of defendant since 3967. There is no indication that she received an “annual, mailout” in any of the intervening years. Construing the evidence most strongly in favor of plaintiffs and considering. the hand
This does not dispose of the matter because a court of appeals must affirm a judgment of the trial court if it reached the right conclusion, even if thе determination was made through invalid reasoning. The issue in this case is not whether plaintiffs proved the allegations of their complaint, because, when the evidence is construed most strongly in their favor they essentially did so, but, rather, is whether plaintiffs have a cause of action for an invasion of privacy. The court knows of and has been cited to no case wherein the fact situation was similar to that involved here.
Each person possesses a. right of privaсy and may maintain an action for a wrongful invasion thereof. See
Housh
v.
Peth
(1956),
“An actionable invasion of the right of privacy is the unwarranted appropriation or exploitation of one’s personality, the publicizing of one’s private affairs with which the public has no legitimate concern, or the wrongful intrusion into one’s private activities in such a manner as to outrage or cause mental suffering, shаme or humiliation to a person of ordinary sensibilities.”
Obviously, the question in this case is whether defendant by sending the communications in question committed a wrongful intrusion into plaintiffs’ activities “in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.” In
Iloush,
the Supreme Court recognized that “a campaign to harass and torment” a person constitutes a wrongful invasion of his privacy. Here it would be difficult to find a campaign to harass and torment the plaintiffs. Likewise,
It must be remembered, however, that an actionable invasion of the right of privacy “is an intentional tort analogous to trespass and battery in protection of personal integrity.”
Lecrone
v.
Ohio Bell Telephone Co.
(1963),
For the foregoing reasons, the assignment of error is sustained, and the judgment of the Franldin County Court of Common Pleas is reversed, and this cause is remanded to that court for further proceedings in accordance with law consistent with this decision.
Judgment reversed and cause remanded,