Hines v. Columbus Bank & Trust Co.

223 S.E.2d 468, 137 Ga. App. 268, 1976 Ga. App. LEXIS 2410

• Court: Court of Appeals of Georgia
• Decided: January 16, 1976
• Docket: 51036
• Status: Published

Opinions

Clark, Judge.

Should we extend the "right of privacy doctrine” to create a cause of action on the basis of a single inquiry letter by a bank addressed to an American Embassy in a foreign nation requesting business information concerning a United States citizen located in that country? Law, logic, and the practicalities of modern commerce require a negative answer.

Plaintiff Hines sued the Columbus Bank & Trust Company and its employee upon a letter written in behalf of the bank to the American Ambassador at Costa Rica. The complaint stated that "Plaintiff was not a customer of the defendant bank, owed no money to either defendant and had no business with either defendant.” (R. 48). Apparently the letter was written as a service by the bank to one of its customers. The queries submitted were: "a. Has Mr. James T. Hines applied for or has he obtained Costa Rica citizenship? b. Confirm that Mr. Hines is general manager of Taylor and Associates of Costa Rica, Inc., and his approximate annual salary, c. Amount of stock that Mr. Hines owns in this corporation and approximate value, d. His connection with and interest in other business enterprise in Costa Rica. e. If Educators Investment Association of Georgia, Inc. owned or owns any interest in Taylor and Associates of Costa Rica, Inc. f. Whether or not Taylor and Associates of Costa Rica, Inc. is a Costa Rica or Panamanian corporation.” (R. 6-7).

The trial court sustained motions to dismiss by defendants. This appeal is from that judgment.

Recognition of a legally enforceable right of privacy occurred for the first time in American courts in 1905. Georgia lawyers take pride in the fact that this court-created right¹ was the result of a brilliant opinion by Justice Andrew J. Cobb in Pavesich v. New England Life Ins. Co., 122 Ga. 190 (50 SE 68). The dimensions of that precious right have since been delineated in many decisions. These subsequent cases up to 1966 were collected and discussed in Cabaniss v. Hipsley, 114 Ga. App. 367, 370 (151 SE2d 496). There Judge Eberhardt adopted the so-called "Four Tort Rule” which had been suggested by Dean Prosser in his article entitled "Privacy” appearing in 48 Calif. L. Rev. 383 (1960). Judge Eberhardt reviewed the various right of privacy cases under the heading of each of the four categories which were described briefly as: “(1) intrusion upon the plaintiffs seclusion or solitude, or into his private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity which places the plaintiff in a false light in the public eye; (4) appropriation, for the defendant’s advantage, of the plaintiffs name or likeness.”

The only category relevant to the instant case is the first classification, namely, that of intrusion into private affairs. A study of the nine cases cited on page 371 by Judge Eberhardt leads to the conclusion that under this theory "the Georgia cases require that the intrusion must be physical, analogous to a trespass.” Peacock v. Retail Credit Co., 302 FSupp. 418, 422 (N. D. Ga. 1969).

Appellant seeks to extend the right of privacy beyond its present limitations. Since we are dealing with a judge-made tort it is necessary for us to decide if the facts of the case at bar warrant such extension. In making our decision we balance the precious "right-to-be-let-alone” which is desired by everyone as against the necessities of commerce. When put on the scales it is apparent that the courts should not interfere with the established business practice whereby inquiries are made to get information concerning activities, reputation, and financial responsibility — provided it is sought legitimately and not for a malevolent purpose. Everyone in our work-a-day world recognizes the importance to commerce of this kind of information.

Georgia’s appellate courts have recognized the need for pragmatism in deciding the extent to which the right of privacy should be protected. Thus, in Gouldman-Taber Pontiac, Inc. v. Zerbst, 213 Ga. 682 (100 SE2d 881), where the Supreme Court ruled there was no infringement of privacy in the writing of a letter by a creditor to the debtor’s employer asking assistance in collecting a debt, the court said (p. 684), "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 non-interference from other members of the public.’ ” Similarly, in Davis v. General Finance &c. Corp., 80 Ga. App. 708 (57 SE2d 225), when holding that a dunning telegram on a debt that was not owed did not state a cause of action for breach of the right of privacy, our court said: "This right to sue for a violation of the right of privacy is one of recent origin and has been very much restricted from the beginning. Brandéis and Warren, in their article in the Harvard Law Review, supra, stated that 'it is only the flagrant breaches of decency and propriety that could in practice be reached.’ They also recognized that it was often difficult to determine where the individual’s liberty ended and the rights of society began.” P. 710. Our court then added: "There is still another reason (and there may be more), and that is that the protection afforded by the law to the right of privacy must be restricted to 'ordinary sensibilities’ and not to super-sensitiveness or agoraphobia. 41 Am. Jur. § 12, p. 934-5. There are .some shocks, inconveniences and annoyances which members of society in the nature of things must absorb without the right of redress.” P. 711.

Argued September 3, 1975 Decided January 16, 1976. Henry L. Crisp, James C. Gatewood, for appellant. Hatcher, Stubbs, Land, Hollis & Rothschild, Albert W. Stubbs, Page, Scrantom, Harris, McGlamry & Chapman, W. M. Page, for appellees.

Since the defendant bank’s letter to the Embassy indicates interest in obtaining the desired information relative to a pending United States District Court case, we deem it appropriate to quote from the most recent case on this subject: "Reasonable surveillance is recognized as a common method to obtain evidence to defend a lawsuit. It is only when such is conducted in a vicious or malicious manner not reasonably limited and designed to obtain information needed for the defense of a lawsuit or deliberately calculated to frighten or torment the plaintiff, that the courts will not countenance it.” Ellenberg v. Pinkerton’s Inc., 130 Ga. App. 254, 257 (202 SE2d 701).

An examination of the six questions propounded in the letter does not reveal any evil motive. With the exception of the first question seeking to know if the plaintiff had applied for or obtained citizenship in Costa Rica the other questions deal specifically with normal business inquiries. Questions concerning job, salary, and business connections convey no sinister implication; nor do they by inference or innuendo reflect unfavorably upon the plaintiff.

The single letter of business inquiry by the bank to an official did not constitute an unwarranted or unreasonable interference with the plaintiff’s right of privacy.

In view of this ruling it is unnecessary for us to consider whether it is the duty of the plaintiff to plead and prove the law of Costa Rica.

Judgment affirmed.

Bell, C. J., Deen, P. J., Stolz, Webb and Marshall, JJ., concur. Pannell, P. J., Quillian and Evans, JJ., dissent. Evans, J., dissents with supplemental opinion.

1 For legislative developments see "Privacy and the Business Community” by Wright H. Andrews in Oct. 1975 issue of Ga. S. B. J. which explains Congressional proposals seeking to "extend federal control over the information practices of private businesses and state and local governments.” 12 Ga. S. B. J. 92.