Reset A A Font size: Print

District Court of Appeal, Second District, Division 2, California.

GILL et al. v. CURTIS PUB. CO. et al.

Civ. 18091.

Decided: May 18, 1951

Shacknove & Goldman, Los Angeles, Ben F. Goldman, Jr., Los Angeles, of counsel, for appellants. MacDonald & Pettit and Thomas H. McGovern, all of Los Angeles, for respondents.

Appellants seek reversal of a judgment entered pursuant to respondents' motion for judgment on the pleadings. The complaint alleges an action for damages for invasion of privacy as follows: Plaintiffs are husband and wife; they own and operate a confectionary and ice cream concession in the world-famed Los Angeles Farmers' Market which business of plaintiffs is favorably and widely known; in laboring many years to build up such business plaintiffs have ‘established and maintained a reputation for industry, integrity, decency and morality both in the conduct of their aforesaid business and in their personal lives'; that defendant Henri Cartier-Bresson photographed plaintiffs at their place of business without their knowledge or consent; such photograph was used to illustrate an article entitled ‘Love’ written by defendant Dahl; it appeared in the May, 1949, issue of the Ladies Home Journal, herein referred to as the Journal, a monthly publication of respondent Curtis Publishing Company; such article purported to treat of various types of love between human beings of the opposite sex, one of which is the ‘wrong kind of love’ consisting ‘wholly of sexual attraction and nothing else’—a type attributed to plaintiffs; it was ‘published and distributed to the general public throughout the world * * * in utter disregard of the rights and feelings of plaintiffs' and depicted them as loose, dissolute, and immoral persons; it held plaintiffs up to ‘public scorn, ridicule, hatred, contempt and obloquy and did rob and deprive plaintiffs of the benefits of public confidence, respect and esteem and injure said plaintiffs in their business and social contacts and associations and in their reputations and health.’ A copy of the article and its illustration were incorporated in the complaint.

The answer admits publication of the article and photograph, but denies plaintiffs' other material allegations.

The photograph in question depicts two young people seated at a counter of what appears to be an eating establishment, the man with his arm around the girl. Under the picture appeared the caption, ‘Publicized as glamorous, desirable, ‘love at first sight’ is a bad risk.'

The article in the Journal was entitled ‘Love’ and was concerned with the various types of love leading to marriage. Each type was broken down into percentages of sex attraction, affection and respect. The article treats at length the ‘wrong’ type of love, classifying it into three sub-types, the third of which was described as ‘$100 per cent intense sex attraction, affection and respect negligible.’ This classification was characterized as ‘the most dangerous of them all’ and ‘an exact definition of the phrase ‘love at first sight’ which really means nothing more than ‘instantaneous powerful sex attraction’.'

A motion for judgment on the pleadings being in the nature of a general demurrer, MacIsaac v. Pozzo, 26 Cal.2d 809, 812–813, 161 P.2d 449; Grant v. Aerodraulics Company, 91 Cal.App.2d 68, 72, 204 P.2d 683, the sole question for decision is whether the complaint states a cause of action. That it does so will presently appear.

The so-called right of privacy, though of comparatively recent origin, has been distinctly recognized in this state. An invasion thereof gives rise to a cause of action in tort. Kerby v. Hal Roach Studios, 53 Cal.App.2d 207, 210, 127 P.2d 577. It is defined to be the right to pursue and gain happiness, Const. Art. I, sec. 1, and to live one's life in seclusion free from undesired publicity and to be free from unnecessary attacks on one's character, social standing or reputation. Melvin v. Reid, 112 Cal.App. 285, 289, 297 P. 91. In the words of Judge Cooley, it is ‘the right to be let alone.’ In order to constitute an invasion of one's right of privacy it is neither essential that the publication be libelous, 41 Am.Jur. 925, nor that the plaintiff suffer special damages. Ibid. Also, one's right of privacy may be invaded without using his name. ‘Many might recognize the plaintiff's face without knowing her name, and those who did not know it might be led to infer that she had sanctioned the publication under an alias.’ Peck v. Tribune Co., 214 U.S. 185, 188, 29 S.Ct. 554, 555, 53 L.Ed. 960. One's privacy will be protected against invasion by the unnecessary publication of the immoral acts or a person who has rehabilitated himself since his life of shame. Such was the holding in Melvin v. Reid, supra, wherein the plaintiff's maiden name had been used in advertising a film based on incidents in her earlier life when as a prostitute she had been tried and acquitted on a murder charge, but in the eight years since such trial she had allegedly wholly rehabilitated herself and assumed a place in respectable society. If the privacy of Miss Melvin was entitled to protection against the derogatory motion picture that republished her past, surely the same doctrine will be applied to an obviously wanton act of a world famous publication that throws its glaring white light upon the privacy of appellants therein and attributes to them a looseness of moral concepts. Not only is a person's right of privacy invaded by the publication of his picture without permission, but he may be libeled by having his picture printed in such fashion as to expose him to public ridicule. Jackson v. Consumer Publications, 256 App.Div. 708, 11 N.Y.S.2d 462, 464; Peterson v. Rasmussen, 47 Cal.App. 694, 698, 191 P. 30; Flake v. Greensboro News Co., 212 N.C. 780, 195 S.E. 55.

Of course, it is not every interference with one's privacy that is actionable. The protection is relative to the customs of the time and to the plaintiff's habits and occupation. Thus where a person has placed himself in the public eye as an actor or candidate for public office or where one has become ‘newsworthy’ and an object of legitimate public interest, the right is considerably limited. See Rest. Torts, sec. 867, c. The rule is restated in the Law of Torts to be as follows: ‘A person who unreasonably and seriously interferes with another's interest in not having his affairs known to others or his likeness exhibited to the public is liable to another.’ Liability exists only if the defendant's conduct was such that he should have realized that it would offend persons of ordinary sensibilities. Rest. Torts, sec. 867, d.

An unwarranted invasion of a plaintiff's right has been found in countless factual situations, but it is clear from a review of the decisions that it is extremely difficult to frame rules for a determination as to just when there has been an actionable violation of one's privacy. Every controversy must necessarily turn upon its own peculiar facts.

An examination of the decisions suggests a classification thereof into three groups. See Prosser on Torts, sec. 107. 1. Intrusion upon the plaintiff's privacy in the sense of solitude. Byfield v. Candler, 33 Ga.App. 275, 125 S.E. 905, defendant burst into plaintiff's stateroom on board a steamer; Rhodes v. Graham, 238 Ky. 225, 37 S.W.2d 46, a wiretapping situation. 2. Unauthorized use of plaintiff's name or photograph for a commercial use. This is the most frequent violation. Pavesich v. New England Life Insurance Co., 122 Ga. 190, 50 S.E. 68, 69 L.R.A. 101; Foster-Milburn Co. v. Chinn, 134 Ky. 424, 120 S.W. 364, 34 L.R.A.,N.S., 1137; Flake v. Greensboro News Co., supra. 3. Publicity violating ordinary decencies. Douglas v. Stokes, 149 Ky. 506, 149 S.W. 849, 42 L.R.A.,N.S., 386, defendant published a photograph of plaintiff's deformed children; Brents v. Morgan, 221 Ky. 765, 299 S.W. 967, 55 A.L.R. 964, defendant published to the world that plaintiff had not paid a debt; Reed v. Washington Times, 55 Wash.L.R.D.C. 182, publication of stolen photograph of plaintiff in connection with a scandalous report of an attempted double suicide; Melvin v. Reid, supra; Kerby v. Hal Roach Studios, supra.

Under the authority of either group 2 or 3 appellants' complaint alleges facts, which if established, show an unwarranted and unreasonable interference with appellants' interest in not having their likeness exhibited to the public in such a manner. Whether or not the photograph of the young couple be considered ‘complimentary,’ as respondents assert, from a scrutiny of the article together with the picture and its caption it cannot be said that it does not and could not offend persons of ordinary sensibilities. It is a reasonable and legitimate deduction from the publication that appellants as therein pictured represent persons who are guilty of this ‘wrong kind of love.’ The caption thereunder points out that ‘love at first sight is a bad risk.’ This type of love is said in the text to be ‘wrong’ and ‘100 per cent intense sex attraction’ thus manifestly tying in the picture with this feature of the article. One need not be hypersensitive to be offended or humiliated at being denominated in such a manner. As a matter of law, this court cannot say that a person of ordinary sensibilities would not be so disturbed. The reference and tie-in to the photograph may be said to be well-calculated to cause the pictured couple more than passing mental anguish. That is all that is required.

Respondents besides contending that the article is not offensive as a matter of law rely upon other grounds for affirmance. It is insisted that appellants have waived their right to privacy. They rely upon the exception that one who is in the public eye or a party to a happening of legitimate general public interest may not assert this right of privacy. Numerous decisions are cited involving persons in public life, Cohen v. Marx, 94 Cal.App.2d 704, 211 P.2d 320, prizefighter; Pavesich v. New England Life Ins. Co., supra, candidate for public office; Sidis v. F-R Publishing Corp., 2 Cir., 113 F.2d 806, 138 L.R.A. 15, child prodigy; O'Brien v. Pabst Sales Co., 5 Cir., 124 F.2d 167, a football player; Koussevitzky v. Allen, Towne & Health, Inc., 272 App.Div. 759, 69 N.Y.S.2d 432, orchestra conductor, wherein the courts have recognized a ‘waiver’ of this right. Respondents seek to bring appellants within this exception by virtue of the allegations that they own and operate an ice cream concession in the world-famed Farmers' Market and that they were photographed at their place of business. It is argued that thousands of people daily visit the market and that its operations and the scenes thereof are matters of widespread public interest and that appellants are consequently public personages to the extent of their appearance at their place of business.

The statement of such argument spotlights its freedom from logical reasoning. It may be conceded that a photograph of appellants clearly placing them at their business establishment might be published in connection with a legitimate news story of Farmers' Market operations without reasonably invading the privacy of appellants. But such use is a far cry from that of making it the illustration of an abhorrent type of love in a literary discussion of love patterns. There is no analogy of the facts at bar to those in the cited cases.

Respondents contend also that one's photograph may be used to illustrate an article of educational or informative character without violating a right of privacy, thereby attempting to bring the situation at bar within the ‘public interest’ exception, citing Sidis v. F-R Publishing Corporation, supra, 2 Cir., 113 F.2d 806, 807, 138 A.L.R. 15, which they discuss in detail. It involves an article in the New Yorker magazine in its ‘Where Are They Now’ Department reporting the mode of living of the plaintiff who had been a child prodigy. Having at the age of 11 lectured to distinguished mathematicians and graduated from Harvard, but who after reaching early manhood had attempted to conceal his identity and lived a quiet, modest life as a bank clerk. The serenity of Sidis' life was disturbed and he suffered a great mental disturbance by reason of his extreme passion for privacy. However, it was held that the plaintiff was a ‘public figure’ of general interest, ‘newsworthy,’ and consequently the article was privileged and not actionable even though he had attained this status without his consent.

Although this decision has been criticized, see 29 Cal. Law Rev. 87, and relief might well have been granted in this jurisdiction on the authority of the Melvin decision, in any event it is distinguishable from the case at bar in that appellants are not ‘newsworthy’ individuals. The facts that the article itself is of general interest and informative in character do not justify the unauthorized use of appellants' photograph as an illustration of the arguments made by the author.

Respondents' third contention is that the complaint fails for the reason that it does not actually allege an invasion of privacy or that plaintiffs suffered mental pain, anguish or distress as a result of the publication. It is true that appellants' complaint does not mention the term ‘privacy’ itself other than in its caption. It is also elemental that it is the declarations of a pleading and not its designation by the pleader that determine the character of the action. Hutchason v. Marks, 54 Cal.App.2d 113, 114, 128 P.2d 573. However, it does not follow that the title is to be disregarded entirely, and when the title together with facts pleaded show an actionable invasion of privacy with sufficient clarity and certainty, the complaint is adequate. The complaint is consistent with a cause of action for invasion of privacy in that it does not purport to allege the falsity of the contents of the article or of the implications raised by the photograph's use therein.

It is true also that the basis of an action for violation of the right of privacy is usually founded on damages to one's personal feelings, for purely mental harm as against the injury to reputation as in a defamation action. But it does not follow that recovery is limited to damages for purely mental disturbance. See 41 Am.Jur., Privacy, p. 934. Although appellants have not alleged with particularity injury to peace of mind or that they have suffered great mental pain, they have sufficiently expressed the idea of such mental anguish. In two paragraphs of the complaint it is alleged that respondents' acts were in ‘utter disregard of the rights and feelings of plaintiffs.’ Again there is an allegation that plaintiffs have been injured in their health. This is not a model pleading and often sounds in libel, as respondents contend, but in view of the rule that the complaint is to be liberally construed in favor of the pleader on a general demurrer, Gerritt v. Fullerton Union High School District, 24 Cal.App.2d 482, 486, 75 P.2d 627, the allegation as to damages is sufficient. In any event, such defects could have been readily cured by amendment had respondents demurred at the outset of the proceedings.

Judgment reversed.

MOORE, Presiding Justice.

McCOMB and WILSON, JJ., concur.

Copied to clipboard