Does An Erroneous 'after Hours'telephone Listing That Resulted In Numerous Calls at Late Hours Cause An Actionable Nuisance ?

In Wiggins v. Moskins Credit Clothing Store, Inc., 137 F. Supp. 764 (E.D. S. C. 1956), the court ruled in the plaintiff's favor on her complaint that the defendant attempted to collect a debt by means of intrusive and abusive telephone calls to the plaintiff, who was the debtor's landlady. The court stated, "I think it is clear that the invasion of a proprietary interest of plaintiff in her home is alleged, by conduct tantamount to a nuisance. It is alleged that there were repeated calls which amounted to an intrusion into her home and an interference with the peaceful enjoyment thereof." Wiggins, 137 F. Supp. at 767. The allegations in the complaint in Wiggins were that the telephone calls, which were made in the late hours of the night, were abusive and threatening, using "vile" and "opprobrious" language. Wiggins, 137 F. Supp. at 764. These calls were made for a period of three months. Wiggins, 137 F. Supp. at 764. In Macca v. General Telephone Co. of the Northwest, Inc., 262 Or. 414, 495 P.2d 1193 (1972), the Oregon Supreme Court held that a telephone company caused an actionable nuisance when, in a yellow pages advertisement, it erroneously listed the telephone number belonging to the plaintiff as the "after hours" telephone number of a floral shop, resulting in numerous telephone calls to the plaintiff at all hours of the evening and night. Macca, 262 Or. at 418, 495 P.2d at 1195. The court declared, "The gist of the action is the invasion of the individual's interest in the use and enjoyment of land. It includes the disturbance of the comfort or convenience of the occupant of the land." Macca, 262 Or. at 419, 495 P.2d at 1195. While we are not prepared to hold that vexatious telephone calls may never constitute a nuisance, we distinguish Macca by noting that it dealt with an erroneous after-hours telephone listing that resulted in numerous telephone calls to the plaintiff's residence at late hours, which disturbed her meals and sleep, while plaintiffs in our case do not allege conduct that by its very nature is unreasonable. Plaintiffs' complaint does not set forth with particularity the number of calls received and the times the calls were received.