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ELLENBERG et al. v. PINKERTON'S, INC.; and vice versa.
Action for damages. Sumter Superior Court. Before Judge Marshall.
1. The main appeal is mooted by the opinion on the cross appeals and dismissed.
2, 3, 4. The evidence demands a verdict for defendants and it was error to deny the judgments notwithstanding the mistrial.
In its initial appearance before this court, Ellenberg v. Pinkerton's, Inc., 125 Ga. App. 648, 652 (188 SE2d 911), we reversed a grant of summary judgment entered by the court below on motion of the Central of Georgia Railway Company (hereinafter referred to as Central of Georgia), and held that the independent contractor rationale is not applicable in this case. See our opinion in that case for a concise summary of plaintiff's four count complaint. On remand, a jury trial was had. The following is a summary of the evidence.
In late 1966, Mr. Ellenberg was employed as a switchman for the Central of Georgia and injured his back, which allegedly resulted in a disability for which he sued Central of Georgia under the Federal Employers' Liability Act, Title 45 U. S. 51. During the course of trial preparation, the defendant's attorney wanted Mr. Ellenberg's activities checked to ascertain the validity of his injury claim. Central of Georgia employed Pinkerton's, Inc. to conduct a 3-days' "activity check." A Mr. Maddox was assigned the investigation and arrived at Americus, Georgia on September 16, 1969. On September 17, he initiated his investigation and drove past Mr. Ellenberg's rural residence on Shiloh Road four times between 8:00 a. m. and 7:00 p. m. His activities were observed on two occasions by Mrs. Ellenberg. On September 18, about 7:00 a. m., Mr. Maddox parked his car on that road for a few minutes near the Ellenberg home. A Mr. Albritton, a neighbor, asked what Mr. Maddox was doing and upon receipt of advice that he was lost, Mr. Albritton gave directions and left. Mrs. Ellenberg also noticed that incident. An hour later Mr. Ellenberg left his residence and was tailed to a loan company in Americus, Georgia, where he spent about 15 minutes. Exiting, Mr. Ellenberg's car was again tailed, but was lost in local traffic. A later phone call to the Ellenberg residence received a reply from Mrs. Ellenberg that her husband was not at home. About 4:00 p. m. Mr. Ellenberg's car was seen parked next to the residence where it remained during several trips past it by Mr. Maddox. Most of the ensuing two and a half hours was spent in maintaining another unsuccessful surveillance at the road intersection with State Highway 19. On September 19, about 7:00 a. m., Mr. Ellenberg's car was seen at a restaurant and Mr. Maddox took up surveillance across the street. Some forty minutes later Mr. Ellenberg exited and was tailed in his car along Highway 19 until he turned on to Shiloh Road. Mr. Maddox stopped to permit Mr. Ellenberg time to reach his residence. He then entered Shiloh Road to drive past the Ellenberg's residence. Before reaching his destination, according to Mr. Maddox's version, Mr. Ellenberg's car came from the side of a deserted house and fell in behind him, soon passing him at a high rate of speed. Shortly thereafter, Mr. Ellenberg was observed standing in the right lane of the road waving his arms and brandishing a pistol. Mr. Maddox accelerated and swerved around Mr. Ellenberg, who fired several shots, one striking Mr. Maddox's car on the left rear. According to Mr. Ellenberg's version, he saw Mr. Maddox's car parked alongside the county road contiguous to a farm allegedly owned by him, but leased to another person. Armed with a pistol, he sneaked up on Mr. Maddox and asked what he was doing. Mr. Maddox ran toward his car, disregarding warning pistol shots and calls to halt. As Mr. Maddox drove off, Mr. Ellenberg shot at and hit the car.
At the close of the evidence, motions for directed verdicts were made to all four counts of the complaint by the defendants and were denied, except as to count three (malicious prosecution) which was granted. Thereafter, mistrial was declared because of improper final argument by plaintiff's counsel. The defendants then moved for judgments notwithstanding mistrial which were denied in part and granted in part. Simultaneously, the court issued an order amending the general pretrial order to reflect that the purpose for which the "activities check" was undertaken was not in issue and that Mrs. Ellenberg could not complain of any invasion of her privacy by the "activities check" on her husband, since his implied waiver covered her right as well. These interlocutory orders were certified by the trial judge for immediate review pursuant to Code 6-701 (Ga. L. 1965, p. 18; 1968, pp. 1072, 1073). Plaintiffs have appealed from the orders and defendants have cross appealed.
1. The main appeal, Case No. 48211. Our disposition of the cross appeals moots the main appeal and it must be dismissed.
2. The cross appeals, Cases Nos. 48212, 48213. Defendants enumerate that the trial judge erred in denying their motions for judgments notwithstanding mistrial as to the plaintiff, Mrs. Ellenberg. The latter's testimony at the trial reflects that there was no viable evidence to support the complaint. Mrs. Ellenberg merely testified that from her window she saw a white car drive slowly along the adjacent county road on several occasions over a three day period and one time had seen it parked across the road. On that occasion her landlord, Mr. Albritton, had stopped and had talked to the occupant and then driven off. Mrs. Ellenberg never testified that she suffered mental anguish or fright or fear that Mr. Maddox would harm them, or that she suffered additional mental anguish from the reaction of plaintiffs' neighbors and friends; all as alleged in the complaint. The record merely reflects a reasonable surveillance of the Ellenbergs' residence from a public road which apparently piqued Mrs. Ellenberg's curiosity. The surveillance clearly did not exceed the limits of decency, nor could it be held offensive to persons of ordinary sensibilities as contemplated by the Restatement of the Law, Torts, 867. See Pinkerton &c. Agency v. Stevens, 108 Ga. App. 159, 167 (132 SE2d 119). In Cannabis v. Hipsley, 114 Ga. App. 367, 370 (151 SE2d 469) this court adopted Dean Prosser's four tort rule as delineated in his article, "Privacy," 48 Calif. L. Rev. 383 (1960). In that opinion, the torts are discussed at length. We do not propose to recite the case law contained therein. Suffice it to state that the testimony and exhibits in the case sub judice reflect no intrusion upon Mrs. Ellenberg's seclusion or solitude, or into her private affairs. They do not constitute a public disclosure of embarrassing private facts, or evidence publicity which places her in a false light in the public eye. The evidence demands a verdict for defendants insofar as plaintiff, Mrs. Ellenberg is concerned.
3. Defendants all enumerate the same error discussed in Division 2, supra, but relate it to the plaintiff, Mr. Ellenberg. Again, the complaint is not supported by the testimony. We find nothing to indicate other than a reasonable surveillance was conducted. Mr. Maddox's car was observed on a county road driving slowly by the Ellenbergs' residence on several occasions, once parked at the intersection formed with the highway, and following him on other public roads, and once in Americus, Georgia. This allegedly caused general alarm to Mr. Ellenberg and his friends. Illustrative of the latter class was a then Sergeant Detective Grant, Americus Police Department, who testified that he had observed Mr. Maddox's car both traveling and parked at an old grocery store. However, he abandoned all thoughts of inquiring as to Mr. Maddox's business in the neighborhood while his wife learned of his intentions and "got in a turmoil." Apparently, the alarm allegedly generated in this policeman by Mr. Maddox's surveillance was subservient to the fear of a sharp tongue. His testimony reflects no more than idle curiosity. Mr. Ellenberg's testimony is no stronger. He testified that he thought Central of Georgia lay behind the surveillance and had gone to the trouble of having Mr. Maddox's car license plate checked as to ownership and in ascertaining the motel where Mr. Maddox was staying, yet he did not file a complaint with anyone, or communicate with Mr. Maddox.
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 designated 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. Pinkerton &c. Agency v. Stevens, supra. The law in other states is not to the contrary. See Forster v. Manchester, 410 Pa. 192 (189 A2d 147) and Tucker v. American Employers Ins. Co. (Fla.), 171 S.2d 437.
4. Defendants enumerate as error the trial court's denial of their motion for judgment notwithstanding mistrial as to count 4 of the amended complaint, which alleged trespass on private farm property. Mr. Ellenberg testified that he had bought some 100 acres of land about a mile from his house and had rented the property to another prior to the alleged trespass. Following the incident, Mr. Ellenberg had inspected the property and found no damage. Although disputed, we will assume arguendo that a trespass did occur. Code 105-1404 reads as follows: "The person having title to lands, if no one is in actual possession under the same title with him, may maintain an action for a trespass thereon; and if a tenant is in possession and the trespass is such as injures the freehold, the owner, or a remainderman or reversioner, may still maintain such action." Mr. Ellenberg, having admitted that there was a tenant in possession and that there was no damage to the freehold, cannot maintain his action. See Southern R. Co. v. State of Ga., 116 Ga. 276 (1) (42 SE 508).
Judgment reversed as to cross appeals with direction to enter judgment for defendants. The main appeal is dismissed. Eberhardt, P. J., and Stolz, J., concur.
Landau, Davis & Farkas, Edmund A. Landau, for Central of Ga.
Wright & Faircloth, G. Mallon Faircloth, for Pinkerton.
Myers & Parks, John R. Parks, for Ellenberg.
Friday May 22 13:05 EDT

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