Winegard v. Larsen, 59593

• Decision Date: 21 December 1977
• Docket Number: No. 59593,59593
• Citation: 260 N.W.2d 816
• Court: Iowa Supreme Court
• Parties: John R. WINEGARD, Appellant, v. Richard A. LARSEN, Stephen L. Schalk, Robert Bradfield, Larsen, Schalk& Bradfield, a partnership and/or association engaged in the practice of law, Appellees.

Page 816

260 N.W.2d 816

John R. WINEGARD, Appellant, v. Richard A. LARSEN, Stephen L. Schalk, Robert Bradfield, Larsen, Schalk& Bradfield, a partnership and/or association engaged in the practice of law, Appellees.

No. 59593.

Supreme Court of Iowa.

Dec. 21, 1977.

Edward W. Dailey Law Offices, P. C., Burlington, for appellant.

Betty, Neuman, McMahon, Hellstrom & Bittner, Davenport, for appellees.

Heard by MOORE, C. J., and LeGRAND, REES, UHLENHOPP and McCORMICK, JJ.

McCORMICK, Justice.

Plaintiff John R. Winegard filed a petition in two divisions seeking damages for invasion of privacy and defamation against defendants Richard A. Larsen, Stephen L. Schalk, and Robert Bradfield, members of a Davenport law firm. The trial court sustained defendants' motion for summary judgment on the invasion of privacy claim, and plaintiff appeals from that ruling. We affirm.

Familiar principles govern our review in summary judgment cases. They are discussed in a number of recent decisions and will not be repeated here. See Graham v. Kuker, 246 N.W.2d 290 (Iowa 1976); Daboll v. Hoden, 222 N.W.2d 727 (Iowa 1974); Mead v. Lane, 203 N.W.2d 305 (Iowa 1972); Sherwood v. Nissen, 179 N.W.2d 336 (Iowa 1970).

We recognize a common law tort for invasion of privacy in Iowa. See Bremmer v. Journal Tribune Publishing Company, 247 Iowa 817, 76 N.W.2d 762 (1956). We have also cited with approval Professor Prosser's characterization of the kinds of actionable invasion which may occur. Yoder v. Smith, 253 Iowa 505, 112 N.W.2d 862 (1962).

The questions here are (1) whether an invasion of privacy action can be based on oral statements, (2) whether the confidentiality provisions of § 598.26, The Code, apply to filings in this court, and (3) whether the record shows a genuine issue of material fact upon which plaintiff is entitled to trial.

Plaintiff's action is predicated on statements allegedly made by one or more of the defendants to a reporter for the Des Moines Register and Tribune Company concerning a Des Moines County dissolution of marriage action in which plaintiff was respondent. We have decided two other cases arising from the same controversy. They are In re Marriage of Winegard, 257 N.W.2d 609 (Iowa 1977), and Winegard v. Oxberger, 258 N.W.2d 847 (Iowa 1977). The first case was an appeal by plaintiff from an allowance of temporary attorney fees to petitioner in the dissolution action. We affirmed. The latter case was a certiorari action against a Polk County judge who refused to compel discovery of the newspaper reporter who wrote articles containing the statements upon which the present action is based. We sustained the writ.

In this action plaintiff contends his privacy was invaded by the alleged statements to the reporter. He singles out the following parts of resulting newspaper articles as showing actionable statements:

1. (from the Des Moines Tribune of January 8, 1975)

Mrs. Winegard's attorney, Stephen Schalk, of Davenport, said the two exchanged wedding rings during a return flight from Las Vegas in 1971 and have held themselves out to the community as husband and wife since that time.

A daughter from one of Sally Ann Winegard's previous marriages had her name changed to Winegard by the two adults, according to the attorney.

2. (from the Des Moines Register of January 9, 1975)

Sally Ann Winegard's attorney, Stephen Schalk of Davenport said the two exchanged wedding rings during a return flight from Las Vegas in 1971 and have held themselves out to the community as husband and wife since that time.

A daughter from one of Sally Ann Winegard's previous marriages had her last name changed to Winegard by the two adults, according to the attorney.

3. (from The Hawkeye, of Burlington, on January 9, 1975)

The pair has allegedly lived together since 1971. Her attorney, Stephen Schalk of Davenport has said they exchanged wedding rings that year and have since shown themselves to the community as husband and wife.

Defendants alleged in their motion for summary judgment that no genuine issue of material fact existed to preclude judgment for them as a matter of law. In support of their motion they introduced trial court findings of fact and conclusions of law from the dissolution action, a copy of a complaint filed by plaintiff in federal court in an effort to halt discovery of his financial affairs in the dissolution case, and the Polk County district court ruling denying plaintiff's motion to compel discovery of the newspaper reporter. In resisting the motion, plaintiff introduced an affidavit in which he denied the truth of the statements attributed to Schalk in the newspaper articles, copies of motions filed by him in the Polk County action, copies of the petition for certiorari and writ of certiorari issued to the Polk County district court, orders of this court sequestering documents relating to the dissolution action in the certiorari case in this court, and an affidavit that the dissolution trial was closed to the public.

The specific legal issues on which the motion for summary judgment was heard were raised in a brief which defendants filed with their motion. After hearing the motion, the trial court overruled it as to the defamation division of the petition but sustained it as to the invasion of privacy division. The court held defendants were entitled to summary judgment on the invasion of privacy claim because oral statements cannot invade privacy, a violation of Code § 598.26 cannot be the basis of a civil suit, the facts alleged to invade plaintiff's privacy were made public by him when he filed his complaint in the federal court and his application for interlocutory appeal with this court in the dissolution case, and statements which accurately report a judicial proceeding do not constitute an invasion of privacy. This appeal by plaintiff ensued.

I. Are oral statements actionable? One of the legal grounds relied on by the trial court in granting defendants summary judgment was that oral as opposed to written statements do not constitute an actionable invasion of privacy. Plaintiff contends this ground is without merit, and we agree. We assume, without deciding, that the present record shows plaintiff's action is predicated solely on oral communications.

In their historic article on the right of privacy Samuel D. Warren and Louis V. Brandeis wrote that "the law would probably not grant any redress for the invasion of privacy by oral publication in the absence of special damage." Warren and Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193, 217 (1890). 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. In this era of mass oral as well as written communication, an invasion of privacy may occur as readily by the spoken as by the written word. See Biederman's of Springfield, Inc. v. Wright, Mo., 322 S.W.2d at 897 ("The oral publication of a private matter with which the public has no proper concern may be just as devastating and damaging as a written communication.").

The present case illustrates the validity of the modern view. If one of the defendants did make the statements in an interview with a newspaper reporter as alleged, the statements obviously were made with an expectation they might be printed in a newspaper. Any resulting invasion of privacy would be as great as if the statements had been made in writing.

In accordance with the modern rule, we hold that spoken words may be an actionable invasion of privacy. The trial court erred in holding otherwise.

II. Do the confidentiality provisions of Code § 598.26 apply in this court? The trial court held plaintiff's invasion of privacy claim could not be based on § 598.26, The Code. This statute provides for confidentiality, in defined circumstances, of the record and evidence in dissolution of marriage cases and includes a misdemeanor penalty for violation. The court's holding rested on two bases. The first was that a violation of the statute will not support a civil action for invasion of privacy. The other was that its protection is not available here in any event.

The statute provides:

The record and evidence in all cases where a marriage dissolution is sought shall be closed to all but the court and its officers, and access thereto shall be refused until a decree of dissolution has been entered. If the action is dismissed judgment for costs shall be entered in the judgment docket and lien index. The clerk shall maintain a separate docket for dissolution of marriage actions. No officer or other person shall permit a copy of any of the testimony, or pleading, or the substance thereof, to be made available to any person other than a party or attorney to the action. Nothing in this section shall be construed to prohibit publication of the original notice as provided by the rules of civil procedure. Violation of the provisions of this section shall be a public offense, punishable by a fine of not more than one hundred dollars, or imprisonment in the county jail not more than...