Flake v. Greensboro News Co.

Citation195 S.E. 55,212 N.C. 780
Decision Date02 February 1938
Docket Number744.
PartiesFLAKE v. GREENSBORO NEWS CO. et al.
CourtUnited States State Supreme Court of North Carolina

Appeal from Superior Court, Forsyth County; Frank S. Hill, Special Judge.

Action by Nancy Flake, by her next friend, Mrs. W. F. Flake, against the Greensboro News Company and others for damages allegedly sustained as the result of a publication of the plaintiff's photograph or likeness in connection with an advertisement which appeared in a newspaper. From an adverse judgment, the defendants appeal.

New trial.

A "libel per se" is a malicious publication expressed in writing, printing, picture, caricature, sign, or other device, which upon its face and without aid of extrinsic proof is injurious and defamatory, tending either to blacken the memory of one dead or the reputation of one who is alive and expose him to public hatred, contempt, or ridicule.

Strictly there are no property rights, and all rights are individual and a person's right to possession, control, use, and disposition of property is as personal as the right to individual liberty or free speech.

This is a civil action to recover damages which the plaintiff alleges she sustained as the result of the publication of her photograph or likeness in connection with an advertisement in the Greensboro Daily News, published by the defendant Greensboro News Company.

No summons was served on the defendants Anton Scibilia and Nick Boila, trading under the firm name of "Folies de Paree" and they are not parties hereto. Folies de Paree was a vaudeville or stage show and advertised its performance through a system of "tie up" advertising. Under this system, some merchant and the local theatre join in the advertisement and it advertises both the product or the merchandise of the merchant and the theatre performance. Pursuant to this plan, the agent of the "Folies de Paree" solicited the defendant L. Melts, who conducted a bakery in Greensboro under the name of "Melts Bakery" and the defendant North Carolina Theatres, Inc., to join in such an advertisement and as a result a two-column advertisement was published in the Greensboro Daily News, issue of March 11, 1936. In the right portion of the advertisement there was a cut from the plaintiff's photograph showing her standing and wearing a bathing suit. To the left was the following wording, so arranged as to make four distinct statements, as follows:

"Keep that Sylph-Like Figure by eating more of Melt's Rye and Whole Wheat Bread, says Mlle. Sally Payne, exotic red haired Venus-
'Folies de Paree' sparkling Parisian Revue, Stage Production, National Theatre two days only, March 11 and 12.
'Melts' Rye and Whole Wheat Bread will give you the necessary energy, pep and vitality without adding extra weight,' says Miss Payne. Melts Bakery, 314 N. Elm St., 1829 Spring Garden St.
'Ask for Melts' Bread-Melts in Your Mouth."'

In publishing this advertisement, the photograph or mat made therefrom was used without the consent of the plaintiff and was used by mistake-the defendants intending to use a cut of Sally Payne, the leading lady of Folies de Paree.

The mistake having been called to the attention of the defendant Greensboro News Company, it immediately published a full explanation of the mistake and an apology.

The plaintiff does not contend that her likeness was in anywise caricatured or distorted, but alleges that its use as a part of said advertisement tended to connect her with and represent that she was a member of Folies de Paree, which was a "theatrical troop organized in the city of Chicago and composed of the cheapest class of chorus girls, who receive a salary, as the plaintiff is informed, believes and alleges, of less than $20.00 per week; that said show is a low type of vaudeville entertainment, the girls appearing in same being selected without regard to any qualifications, except appearance; that the girls appearing in said show have no special talent, training nor experience; that said show was a sensual performance, or sex parade."

Plaintiff, having, as she contends, shown talent as a radio entertainer, started a course of instructions leading to this career when she was thirteen years of age. She became vocalist for Frank Dailey's Orchestra, program of which, including plaintiff's numbers, was broadcast over the Columbia Broadcasting System, at station WABC. She had made numerous phonograph records and had recently appeared as a member of an orchestra in Winston-Salem, Sedgefield, Laurinburg, and Durham. She posed for the published photograph and other photographs in the private studios of the Columbia Broadcasting System. She had two pictures made while wearing a bathing suit and the others in conventional dress. These pictures, including those in bathing suit, were used by the Columbia Broadcasting System in giving publicity to her in her performance. She had never been a member of a vaudeville troop or on the stage except as soloist with her orchestra.

The record does not disclose just how the mistake occurred or how the Greensboro News Company came in possession of the plaintiff's photograph, whether the news company had the photograph in its files in connection with the plaintiff's campaign for publicity, or it was furnished by Folies de Paree. In this connection the plaintiff testified that mats were made from these photographs (referring to the photographs taken in the studios of Columbia Broadcasting Company and including two photographs of her while she was dressed in bathing suit) and that "they were sent to very many places and very many people. They were used to give me publicity and were sent out with my entire consent and approval. I was not compelled by anyone to pose for this photograph, but I did try to cooperate. I posed for this photograph of my own free will and accord."

In one of the photographs she is dressed in a bathing suit and is in a standing position. This is the one published by the defendants. In another she is dressed in a bathing suit and is in a recumbent position. She further testified that she never sang while dressed in bathing suit, but that these photographs were made purely for publicity purposes. At the time of the publication, plaintiff was in New York and was unemployed. She first learned of the publication through a letter from her mother.

The bathing suit photograph of plaintiff in recumbent position was published with her entire consent and approval in the magazine "Popular Songs," with the following cut line: "Nifty Nancy Flake, in this fetching attire, proves that singers who have what it takes can be equally alluring flirting with the high seas or the high C's." The photograph was published in other magazines and newspapers with similar cut lines with plaintiff's entire approval.

There was no evidence as to the pay or qualifications of the chorines in the show, but there was evidence that during the show they were as scantily dressed as the plaintiff and that some "dirty" jokes were told.

In the trial below issues were submitted to and answered by the jury as follows:

"1. Did the defendants, or any of them, and if so, which defendant or defendants, wrongfully and unlawfully publish or caused to be published of and concerning the plaintiff the matters set forth in paragraph 8 of plaintiff's complaint, as alleged? A. Yes, as to all defendants.

2. If so, was such publication, in the light of surrounding facts and circumstances, calculated to bring and did it bring the plaintiff into public ridicule and contempt, as alleged? A. Yes.

3. What damages, if any, is the plaintiff entitled to recover? A. $6,500.00."

Judgment was entered in accord with the verdict, and the defendants excepted and appealed.

Hobgood & Ward, Douglas & Douglas, and Kenneth M. Brim, all of Greensboro, John J. Ingle and Fred S. Hutchins, both of Winston-Salem, and Francis I. Anderson, of Greensboro, for appellants.

Slawter & Wall and Parrish & Deal, all of Winston-Salem, for appellee.

BARNHILL Justice.

While the complaint does not undertake to state two separate and distinct causes of action, it in fact alleges two causes of action and was so interpreted and treated by the court below. The plaintiff alleges that the publication was libelous and also that it violated plaintiff's alleged right of privacy.

Libels may be divided into three classes: (1) Publications which are obviously defamatory and which are termed libels per se; (2) publications which are susceptible of two reasonable interpretations, one of which is defamatory and the other is not; and (3) publications which are not obviously defamatory, but which become so when considered in connection with innuendo, colloquium, and explanatory circumstances. This type of libel is termed libel per quod.

When an unauthorized publication is libelous per se, malice and damage are presumed from the fact of publication and no proof is required as to any resulting injury. The law presumes that general damages actually, proximately, and necessarily result from an unauthorized publication which is libelous per se and they are not required to be proved by evidence since they arise by inference of law, and are allowed whenever the immediate tendency of the publication is to impair plaintiff's reputation, although no actual pecuniary loss has in fact resulted. 36 C.J. 1150; Baker v. Winslow, 184 N.C. 1, 113 S.E. 570; Fields v. Bynum, 156 N.C. 413, 72 S.E. 449; New York Evening Post Co. v. Chaloner, 2 Cir., 265 F. 204.

In an action upon a publication coming within the second class that is, a publication which is susceptible of two interpretations, one of which is defamatory, it is for the jury to determine under the circumstances whether the publication is defamatory and was so understood...

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