Breuleux v. Pentagon Federal Credit Union ( 1983 )

I must dissent. While I agree with the statement of facts, my brothers have not properly applied the standard of law enunciated in Housh v. Peth (1956), 165 Ohio St. 35 [59 O.O. 60].

The majority opinion, herein, states:

"* * * Malice in law requires the willful doing of an injurious act without just cause or excuse. * * * The record below is void of evidence indicating any such intentional wrongdoing on the part of Pentagon." (Citation omitted.)

The majority further states:

"When Pentagon's actions are compared with actions by other creditors found by Ohio courts to constitute malicious invasions of debtor privacy, the wisdom of granting appellant's motion for directed verdict becomes insuperable. * * *" (Emphasis added.)

Finally, the majority concludes that:

"* * * Clearly the manner in which the credit union in the case at bar handled appellees' account does not illustrate conduct that reasonable minds could find to constitute a malicious invasion of privacy." (Emphasis added.)

However, malice is not an element of the claim of invasion of the right of privacy. In Housh, supra, at page 39, the Supreme Court approved the following jury instruction:

"``Therefore, if you find from the evidence that the conduct * * * was such as to outrage or to cause mental suffering, shame or humiliation to a person of ordinary sensibilities, it will be your duty to return a verdict for the plaintiff * * *.'" (Emphasis added.)

Malice need only be proved to recover punitive damages or attorney's fees. Housh, supra.

The appellant herein argues that, as a matter of law, its conduct did not give rise to an actionable invasion of privacy. While the court in Housh states that reasonable collection procedures may be utilized to pursue a debtor, here the debt was settled almost five years before collection activities began. In addition, while the court did instruct the jury that no agency relationship existed between Pentagon and Central and thus Pentagon's knowledge of the particular collection procedures utilized cannot be presumed, it approaches the absurd to assume that a credit union as large as Pentagon cannot be charged with more than a minimal awareness of the collection process, and the threats, letters and other tactics designed to frighten and harass the debtor into paying his debts.

Appellees presented evidence of four letters to Pentagon protesting the collection process, the first being mailed in late October 1979. Construing the evidence most favorably for the appellees, one must conclude that Pentagon waited almost twelve weeks to respond to the appellees' letter and continued to allow Central to pursue collection activities, when it had reason to know that the debt had been paid. Certainly it cannot be said, as a matter of law, that Pentagon's behavior did not amount to an actionable invasion of privacy. Thus, I feel that this case was properly submitted to the jury and that appellant's assignment of error should be overruled.