Oppenheim has not cited any Florida cases in which a debt collector was found liable for intrusion based solely on telephone calls to a debtor's residence. Defendant relies on Sacco v. Eagle Finance Corp. of North Miami Beach, 234 So. 2d 406, 407-08 (Fla. 3d DCA 1970). Sacco is distinguishable and therefore not instructive.

Santiesteban v. Goodyear Tire and Rubber Co., 306 F.2d 9, 11 (5th Cir. 1962). See Rawls v. Conde Nast Publications, Inc., 446 F.2d 313, 319 (5th Cir. 1971), cert. denied, 404 U.S. 1038, 92 S.Ct. 712, 30 L.Ed. 2d 730 (1972); Sacco v. Eagle Finance Corp., 234 So.2d 406, 408 (Fla. 3d D.C.A. 1970). Bucknole did not physically invade privacy.

However, the elements of the tort are ill-defined and the appellate opinions indicate conflict within the state court system on the division of function as between judge and jury. The diverse results reached in the following cases readily illustrate the problem: Mann v. Roosevelt Shop, Inc., Fla. 1949, 41 So.2d 894; Slocum v. Food Fair Stores, Fla. 1958, 100 So.2d 396; Korbin v. Berlin, Fla.App.3d 1965, 177 So.2d 551, cert. denied, 183 So.2d 835; and Sacco v. Eagle Finance Corp. of North Miami Beach, Fla.App.3d 1970, 234 So.2d 406. From the foregoing, it appears that the better course for this Court to take is to decline jurisdiction and allow the parties to litigate the pendent claim in the state court system and thereby obtain a more certain determination of the pertinent state law.

They reasoned that the injury from oral communications would ordinarily be so minor that courts might well disregard it. Although a few courts in older cases held or suggested privacy could not be invaded by mere spoken words, it is generally held today that the right of privacy can be violated by any means of communication. See, e.g., Santiesteban v. Goodyear Tire Rubber Co., 306 F.2d 9 (5 Cir. 1962); Norris v. Moskin Stores, Inc., 272 Ala. 174, 132 So.2d 321 (1961); Sacco v. Eagle Finance Corp., 234 So.2d 406 (Fla.App. 1970); Brown v. Colonial Stores, Inc., 110 Ga. App. 154, 138 S.E.2d 62 (1964); Carr v. Watkins, 227 Md. 578, 177 A.2d 841 (1962); Biederman's of Springfield, Inc. v. Wright, 322 S.W.2d 892 (Mo. 1959); Housh v. Peth, 165 Ohio St. 35, 133 N.E.2d 340 (1956); Annot., 56 A.L.R.3d 386; Annot. 19 A.L.R.3d 1318; Wade, Defamation and the Right of Privacy, 15 Vand.L.Rev. 1093, 1103-1105 (1962); Prosser on Torts § 117 at 810 (Fourth Ed. 1971). Circumstances have changed since publication of the Warren-Brandeis article.

We are of the opinion that the majority view is the correct one and conclude that we are not only free to adopt it, but are bound to do so by our own precedent. We recognize that in Gellert v. Eastern Air Lines, Inc., 370 So.2d 802 (Fla. 3d DCA 1979), cert. denied, 381 So.2d 766 (Fla. 1980), and Sacco v. Eagle Finance Corp. of North Miami Beach, 234 So.2d 406 (Fla. 3d DCA 1970), this court stated that a cause of action for emotional distress based on outrageous conduct will lie only where it is coupled with other recognized tortious conduct. It appears, however, that in Sacco, we completely overlooked our earlier contrary precedent of Korbin v. Berlin, 177 So.2d 551 (Fla. 3d DCA 1965), cert. dismissed, 183 So.2d 835 (Fla. 1966), and in Gellert, although paying lip service to Korbin, we incorrectly categorized Korbin as being a case where the outrageous conduct was coupled with an independent tort.

Furthermore, upon reviewing the pleadings and depositions in a light most favorable to the nonmoving party, we hold that, assuming arguendo FPC had implied consent to act, a genuine issue of material fact exists as to whether FPC's agents violated the boundaries of that consent by trimming the Crowells' trees in the manner alleged. See Holl v. Talcott, 191 So.2d 40 (Fla. 1966); Cf. Sacco v. Eagle Finance Corporation of North Miami Beach, 234 So.2d 406 (Fla. 3d DCA 1970) (the trial court erred in directing verdict where evidence revealed the existence of a jury question as to whether the "boundaries of consent were overreached by any unreasonable conduct of [defendant's] agent"). Although consent or license is generally a defense to an action in trespass, Prior v. White, 132 Fla. 1, 180 So. 347 (1938), consent or license implied from custom, usage, or conduct is "necessarily limited, however, to those acts that are within a fair and reasonable interpretation of the terms of the grant."

Second, permission to come upon one's premises may be implied from custom, usage, or conduct; but such implied consent is limited to those acts that are within a fair and reasonable interpretation of the terms of the grant. Sacco v. Eagle Finance Corp. of North Miami Beach, 234 So.2d 406 (Fla.3d DCA 1970); Boston Manufacturer's Mutual Insurance Co. v. Fornalski, 234 So.2d 386 (Fla.4th DCA 1970). Cf. Florida Publishing Co. v. Fletcher, 340 So.2d 914 (Fla. 1976).

See Annot., 87 A.L.R.3d at 211. The author of the annotation places Florida with the minority, as do two cases from the Third District: Sacco v. Eagle Finance Corp. of Miami Beach, 234 So.2d 406 (Fla. 3d DCA 1970) and Gellert v. Eastern Air Lines, Inc., 370 So.2d 802 (Fla. 3d DCA 1979). However, another Third District case, Korbin v. Berlin, 177 So.2d 551 (Fla. 3d DCA 1965), allowed an action to proceed on behalf of a six-year-old child for severe emotional distress against a defendant who allegedly accused the child's mother of adultery.

Such has been the uniform holding, and this rule appears to be one that is founded on sound policy. Kirksey v. Jernigan, supra, 45 So.2d 188 (Fla. 1950); Slocum v. Food Fair Stores of Florida, Inc., 100 So.2d 396 (Fla. 1958); La Porte v. Associated Independents, Inc., 163 So.2d 267 (Fla. 1964); Korbin v. Berlin, 177 So.2d 551 (Fla.3d DCA 1965); Sacco v. Eagle Finance Corporation of North Miami Beach, 234 So.2d 406 (Fla.3d DCA 1970); Henry Morrison Flagler Museum v. Lee, supra, 268 So.2d 434 (Fla.4th DCA 1972); Knowles Animal Hospital, Inc. v. Wills, 360 So.2d 37 (Fla.3d DCA 1978). In Kirksey v. Jernigan, supra, the Supreme Court reversed the dismissal of a complaint for damages for mental pain and anguish suffered by the plaintiff as a result of conduct of the defendant which the Court regarded as a separate actionable wrong.

We have carefully reviewed the voluminous record on appeal and find that all issues were properly submitted to the jury on conflicting facts and under correct instructions from the court on the law. Sacco v. Eagle Finance Corp. of North Miami Beach, Fla.App.3d 1970, 234 So.2d 406; Santiesteban v. Goodyear Tire Rubber Company, 5th Cir., 1962, 306 F.2d 9. For a factually similar case brought under the tort of libel, see Vinson v. Ford Motor Credit Company, Fla.App.1st 1972, 259 So.2d 768.