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ELLENBERG et al. v. PINKERTON'S, INC. et al.
46481.
Action for damages. Sumter Superior Court. Before Judge Marshall.
QUILLIAN, Judge.
Where the plaintiff files an action for damages arising in tort against the defendant the plaintiff waives his right to privacy to the extent that the defendant may conduct a reasonable investigation regarding the validity of the plaintiff's claim. Such waiver would not extend to a third party. Hence, the defendant could not employ an "independent contractor" to conduct an investigation so as to absolve the defendant of the consequences of an unreasonable and harassing investigation.
Frank B. Ellenberg, Jr., and his wife brought suit in the Sumter Superior Court against Pinkerton's, Inc. (hereinafter referred to as Pinkerton's), Central of Georgia Railway Company (hereinafter referred to as Central of Georgia), and William R. Maddox. The complaint contained four counts alleging as follows: In the first count that Frank Ellenberg (hereinafter referred to as the plaintiff) while employed by Central of Georgia suffered injuries and as a result sued Central of Georgia; that during pendency of those proceedings, Central of Georgia employed Pinkerton's to conduct a surveillance of the plaintiff; that Maddox an employee of Pinkerton's conducted the surveillance in an open and notorious manner to the general alarm of the plaintiff, his family and neighbors; that the action of the defendant was well calculated to intimidate Ellenberg into dropping his action against Central of Georgia; that the activities of Maddox included trespass upon the property of the plaintiff, obviously following the plaintiff in an automobile and announcing himself as a Pinkerton detective who was investigating the plaintiff to certain public officials, obviously riding up and down the road near plaintiff's residence, thus bringing himself to the notice of the plaintiff's neighbors. The complaint further alleged that Maddox acted under the instructions of Pinkerton's which was an agent and an employee of Central of Georgia and was acting within the scope of its agency in giving instructions; that the activities were conducted in a wilful and malicious manner with the intention of injuring the plaintiff. The first count sought recovery in damages for mental anguish caused by the activities of the defendants and for their malicious acts and bad faith.
Count 3 alleged that Maddox at the express instructions of Pinkerton's brought false and malicious charges against the plaintiff.
Count 4 alleged that Maddox on the instructions of his employer, Pinkerton's, trespassed on the property of the plaintiffs. In both Counts 3 and 4, it was alleged that Pinkerton's was the employee and agent of Central of Georgia and was acting within the scope of its employment.
Central of Georgia in its defense to the complaint, inter alia, set out that the relationship between Pinkerton's and itself was that of an independent contractor and therefore Central of Georgia was not responsible for any of the activities of Pinkerton's or its employee, Maddox. Thereafter, Central of Georgia filed a motion for summary judgment based on various depositions and affidavits. The motion was predicated on the proposition that Pinkerton's was indeed an independent contractor and not an employee of Central of Georgia; that therefore Central of Georgia would not be liable. The trial judge granted Central of Georgia's motion for summary judgment and from this order the plaintiffs appeal.
It is well settled that one is not responsible for the torts of its independent contractor except in those instances set out in Code 105-502.
In determining whether in a situation of this sort the defendant can interpose the independent contractor shield to a suit against it, we must consider the Georgia law with regard to the right of privacy. Georgia was among the first jurisdictions to give recognition to a right of recovery for the tortious invasion of one's privacy. The landmark decision in this area is Pavesich v. New England Life Ins. Co., 122 Ga. 190 (50 SE 68, 69 LRA 101, 106 ASR 104, 2 AC 561). Where one's privacy is invaded, "whether or not there is express malice, that is, a motive to harm the plaintiff by the activity engaged in, is immaterial, because the absence of the motive will neither insulate the defendant if the tort is in fact committed nor will its presence create a cause of action if none otherwise exists." Pinkerton &c. Agency v. Stevens, 108 Ga. App. 159, 166 (132 SE2d 119).
In this case and others, both Georgia and other jurisdictions have recognized that one may waive this right to privacy. Anno., 13 ALR3d 1025. This occurs, for example, where one elects to sue another for injuries he receives. In such case, it has been recognized for a limited purpose that the plaintiff may waive his right to privacy and the defendant has the right to conduct a reasonable investigation of the plaintiff in order to ascertain the validity of the plaintiff's claim. A succinct expression of this proposition is found in the recent case of Bodrey v. Cape, 120 Ga. App. 859, 866 (172 SE2d 643): "The right of privacy may be implicitly waived and it is waived by one who files an action for damages resulting from a tort to the extent of the defendant's intervening right to investigate and ascertain for himself the true state of injury." Nevertheless, as has been pointed out, the reasonableness of the investigation under the circumstances is a question for the jury. Pinkerton &c. Agency v. Stevens, 108 Ga. App. 159, supra.
As held in Pavesich v. New England Life Ins. Co., 122 Ga. 190 (8), supra: "The right of privacy may be waived either expressly or by implication, except as to those matters which law or public policy demands shall be kept private; but a waiver authorizes an invasion of the right only to such an extent as is necessarily to be inferred from the purpose for which the waiver is made. A waiver for one purpose and in favor of one person or class does not authorize an invasion for all purposes or by all persons and classes." See McDaniel v. Atlanta Coca-Cola Bottling Co., 60 Ga. App. 92, 100 (2 SE2d 810). It is therefore apparent that the waiver of the right of privacy is only with regard to the defendant and does not extend to others.
In the case sub judice, Central of Georgia had the right to invade the plaintiff's privacy, but only in a reasonable and proper manner and only in furtherance of its interest with regard to the suit against it. It could not delegate its duty of conducting a proper investigation to Pinkerton's so as to insulate itself from suit if Pinkerton's failed to conduct a reasonable surveillance. That being true, the independent contractor rationale is not applicable in this case. There being a question remaining for jury determination as to whether the investigation was reasonable, the trial judge erred in granting Central of Georgia's motion for summary judgment.
Judgment reversed. Jordan, P. J., and Evans, J., concur.
Landau, Davis & Farkas, Edmund A. Landau, Jr., for appellees.
Myers & Parks, John R. Parks, for appellants.
ARGUED SEPTEMBER 14, 1971 -- DECIDED FEBRUARY 11, 1972 -- REHEARING DENIED MARCH 6, 1972 -- CERT. APPLIED FOR.
Friday May 22 14:35 EDT


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