60 Ga. App. 92 | Ga. Ct. App. | 1939
The defendant filed in this court a motion to dismiss the writ of error, on the ground that no error is assigned on any ruling, order, decision, or charge of the court which has necessarily controlled the verdict or final judgment of the trial court, and that it is insufficient under the Code, § 6-804; it being contended by movant that the first assignment of error presents no question for review, and, while excepting to the allowance of the amendment to the defendant’s plea and answer, does not recite what ground of objection was urged before the trial court; that the second assignment of error presents no question for review, in that, while excepting to the judgment overruling the general demurrer to the plea and answer as amended, it does not aver or attempt to show how or in what manner the judgment necessarily controlled the verdict and final judgment, or how or in what manner the judgment operated to prejudice the rights of the plaintiff or to control or affect the verdict and final judgment; and that the third assignment of error does not of itself present any question for review, but necessarily depends upon valid exceptions and assignments of error.
The present record contains no brief of evidence, and no copy of the charge of the court, but the right to bring a direct bill of exceptions is predicated on the Code, § 6-804, which provides: “In any case where the judgment, decree, or verdict necessarily has been controlled by one or more rulings, orders, decisions, or charges of the court, and the losing party desires- to except to such judgment, decree, or verdict, and to assign error on the ruling, order, decision, or charge of the court, it shall not be necessary to make a motion for new trial, nor file a brief of the evidence, but the party complaining shall be permitted to present a bill of exceptions containing only so much of the evidence or statement of facts as may be necessary to enable the appellate court to clearly understand the ruling, order, decision, or charge complained of.” The present bill of exceptions assigns error on antecedent rulings of the trial court, and alleges, not only that they entered into and affected the-final result of the case in which verdict and final judgment were
In the present case the final judgment is not excepted to for
A preliminary examination of the nature of the action in the present case may appropriately be made. Whatever may be the rule in other jurisdictions as to the right of one to maintain an action for invasion of privacy, it has been definitely settled in this State that such a right exists. Pavesich v. New England Life Insurance Co., 122 Ga. 190 (50 S. E. 68, 69 L. R. A. 101, 106 Am. St. R. 104, 2 Ann. Cas. 561); Bazemore v. Savannah Hospital, 171 Ga. 257 (155 S. E. 194); Newcomb Hotel Co. v. Corbett, 27 Ga. App. 365 (108 S. E. 309); Byfield v. Candler, 33 Ga. App. 275 (125 S. E. 905); Young v. Western & Atlantic Railroad, 39 Ga. App. 761 (148 S. E. 414). In the Pavesich case, in an elaborate opinion by Justice Cobb it was demonstrated that, although it may not have been asserted for a long period of time, such right existed, and that it was the duty of the courts to give relief by the application of recognized principles. Among other things it was held: “2. A right of privacy is derived from natural law, recognized by municipal law, and its existence can be inferred from expressions used by commentators and writers on the law as well as by judges in decided cases. 3. The right of privacy is embraced within the absolute rights of personal security and personal liberty. 4. Personal security includes the right to exist and the right to the en
In the present ease there was no agent or servant of the defendant actually present in the hospital room during the time that it is alleged that the plaintiff was holding intimate, personal, and private conversations with her husband, nurses and friends; but it is admitted by the defendant that it caused the receiving set to be installed in her room, and what was said and done by the plaintiff was listened to and recorded by the defendant’s agent, at its direction, by means of the receiving set and the earphones as described in the petition. This conduct was as effectively an intrusion upon or an invasion of the privacy of the plaintiff as if the agent had actually been in the room. Eavesdropping is by statute in this State declared to be unlawful, and is punishable as for a misdemeanor. Code, §§ 26-2001, 26-2004. An eavesdropper or “Peeping Tom” is defined by the Code, § 26-2002, as “one who peeps through windows or doors, or other like places, on or about the premises of another, for the purpose of spying upon or invading the privacy of the persons spied upon, and- the doing of any other acts of a similar nature, tending to invade the privacy of such persons.” (Italics ours.) By § 105-103 it is declared that where the law requires one to forbear the doing of that which may injure another, although no action be given in express terms, upon the accrual of damages the injured party may recover. The acts of the defendant in the present case were admittedly wilful and intentional; and in such circumstances it is not necessary to recovery that physical injury
The only ground of objection to the allowance of the amendment and the overruling of the general demurrer to the plea and answer as amended is that no legal defense was set up. There was no attempt to strike only a portion, but the plaintiff sought to completely destroy the defendant’s pleadings. If, however, any part of the pleadings was good defensively, the court did not err in refusing to' disallow the amendment, and in overruling the general demurrer to the amended plea and answer, for any reason assigned. No citations are necessary to sustain this settled principle of law. It is contended by the defendant that even though, independently of publication or commercialization (which it is averred in the amended plea and answer was not made), a right of action under the facts alleged in the petition would ordinarily lie, the plaintiff can not recover in the present case, because she waived any right of privacy; and it is asserted that waiver arose by reason of the express or implied consent which is to be found in the plaintiff’s alleged authorization to make any investigation that the defendant, through its attorneys or servants, saw fit. It is shown by the amended plea and answer that when their attorneys visited the patient to ascertain the nature of her claim, and informed her that they were not then empowered to make settlement but were there only to investigate her claim, she stated that they were at perfect liberty to make any kind of investigation concerning her, to inform themselves as to her fairness and honesty and the truthfulness of her statements and claims, and invited them, as representa
While this court will not, except in plain and indisputable cases, determine any issue of fact as a matter of law, we are constrained to hold that no justification is set out in the pleadings of the defendant. The attorneys, when the alleged waiver by implied consent was given, were in the presence of the plaintiff, and had obtained from her a full statement of her .reasons why she felt she was entitled to payment of damages. They informed her that they were not authorized to make settlement, and were only investigating her claim. Thereupon, apparently as they were about to depart, as nothing else appears from the interview, she gave them permission to make any sort of investigation concerning herself and the alleged occurrences in connection with her claim. It would be taxing credulity too severely to assert that thereby she was inviting them to do what would otherwise be, not only a civil trespass, but an act which has been banned by the criminal statutes of this State. Her authorization could only reasonably relate to an investigation in other quarters, as she had concluded in her sickroom her version of the affair, and it necessarily comprehended an investigation only as to things past or information from others as to her character and honesty of purpose. If the argument of counsel for the defendant is to be accepted, the defendant was authorized, out of its hope and desire to obtain information relevant to the alleged injury, to listen in upon conversations in a sickroom of a nature so
But while the defendant was not justified in what it did, either on the theory of invitation and waiver, or because, as contended by counsel in their brief, the plaintiff was about to commit a trespass upon it by instituting a fake damage suit, which later action, however, could not, in advance of judgment in favor of the defendant, be deemed a violation of any right of the defendant, the defendant is nevertheless entitled to set up any facts which might be considered by the jury in extenuation or mitigation of damages. Code, § 105-1802; Ransone v. Christian, 49 Ga. 491; Henderson v. Fox, 80 Ga. 479 (2) (6 S. E. 164); Conley v. Arnold, 93 Ga. 823 (2) (20 S. E. 762); Thompson v. Shelverton, 131 Ga. 714 (63 S. E. 220); Hutcheson v. Browning, 34 Ga. App. 276 (2) (129 S. E. 125); Clay v. Brown, 38 Ga. App. 157 (6) (142 S. E. 911); Robinson v. DeVaughn, 59 Ga. App. 37 (200 S. E. 213). Inasmuch as in the amendment and in the plea and answer as amended the defendant set up facts which were proper for the consideration of the jury as to extenuation or mitigation of damages, although not showing justification, the court did not err, for any reason assigned, in allowing the amendment and in overruling the general demurrer to the plea and answer as amended; and did not err in permitting the verdict and judgment to be rendered, for the reason assigned by the plaintiff. Consequently the judgment must be affirmed.
In the cross-bill of exceptions the defendant assigns error on the judgment of the court in overruling its general demurrer to the petition. Eor the reasons shown in the second division of this opinion, the petition as amended set out a cause of action for invasion of the privacy of the plaintiff, and the court did not err in overruling the demurrer.
