50 S.E. 68 (Ga. 1905), Pavesich v. New England Life Ins. Co.

Citation:50 S.E. 68, 122 Ga. 190
Opinion Judge:COBB, J.
Attorney:Westmoreland Bros. and M. M. Hirsh, for plaintiff in error. J. L. Hopkins & Sons, for defendants in error.
Case Date:March 03, 1905
Court:Supreme Court of Georgia

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50 S.E. 68 (Ga. 1905)

122 Ga. 190




Supreme Court of Georgia

March 3, 1905

Syllabus by the Court.

1. The absence for a long period of time of a precedent for an asserted right is not conclusive evidence that the right does not exist. Where the case is new in principle the courts cannot give a remedy, but, where the case is new only in instance, it is the duty of the courts to give relief by the application of recognized principles.

2. A right of privacy is derived from natural law, recognized by municipal law, and its existence can be inferred from expressions used by commentators and writers on the law as well as judges in decided cases.

3. The right of privacy is embraced within the absolute rights of personal security and personal liberty.

4. Personal security includes the right to exist, and the right to the enjoyment of life while existing, and is invaded not only by a deprivation of life, but also by a deprivation of those things which are necessary to the enjoyment of life according to the nature, temperament, and lawful desires of the individual.

5. Personal liberty includes not only freedom from physical restraint, but also the right "to be let alone"; to determine one's mode of life, whether it shall be a life of publicity or of privacy; and to order one's life and manage one's affairs in a manner that may be most agreeable to him so long as he does not violate the rights of others or of the public.

6. Liberty of speech and of the press, when exercised within the bounds of the constitutional guaranties, are limitations upon the exercise of the right of privacy.

7. The Constitution declares that the liberty of speech and of the press must not be abused, and the law will not permit the right of privacy to be asserted in such a way as to curtail or restrain such liberties. The one may be used to keep the other within lawful bounds, but neither can be lawfully used to destroy the other.

8. The right of privacy may be waived, either expressly or by implication, except as to those matters which law or public policy demands shall be kept private, but a waiver authorizes an invasion of the right only to such an extent as is to be necessarily inferred from the purpose for which the waiver is made. A waiver for one purpose, and in favor of one person or ciass, does not authorize an invasion for all purposes, or by all persons and classes.

9. One who seeks public office, or any person who claims from the public approval or patronage, waives his right of privacy to such an extent that he cannot restrain or impede the public in any proper investigation into the conduct of his private life which may throw light upon the question as to whether the public should bestow upon him the office which he seeks, or accord to him the approval or patronage which he asks. The holder of public office makes a waiver of a similar nature, and subjects his life at all times to closest scrutiny, in order that it may be determined whether the rights of the public are safe in his hands.

10. The conclusion and reasoning of the majority in the case of Roberson v. Rochester Folding Box Company, 64 N.E. 442, 59 L.R.A. 478, 89 Am.St.Rep. 828, 171 N.Y. 540, criticised and disapproved; and the reasoning of Judge Gray, in his dissenting opinion, adopted and followed.

11. The publication of a picture of a person, without his consent, as a part of an advertisement, for the purpose of exploiting the publisher's business, is a violation of the right of privacy of the person whose picture is reproduced, and entitles him to recover, without proof of special damage.

12. The publication of one's picture, without his consent, for such a purpose, is in no sense an exercise of the liberty of speech or of the press, within the meaning of those terms as used in the Constitution.

13. Words which are harmless in themselves may be libelous in the light of extrinsic facts.

14. A publication which imputes to one language which is known to those among whom he lives to contain statements which are false is libelous.

15. A publication of an advertisement of an insurance company, containing a person's picture, and a statement that the person has policies of insurance with the company, and is pleased with his investment, when in fact he has no such policies, is libelous, as having a tendency to create the impression among those who know the facts that the person whose picture is reproduced has told a willful falsehood, either gratuitously or for a consideration.

16. The petition was good as against a general demurrer, and the objections raised in the special demurrer were without merit.

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by Paolo Pavesich against the New England Life Insurance Company and others. From an order sustaining a demurrer to the complaint, plaintiff brings error. Reversed.

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Westmoreland Bros. and M. M. Hirsh, for plaintiff in error.

J. L. Hopkins & Sons, for defendants in error.


1-12. The petition really contains two counts--one for a libel, and the other for a violation of the plaintiff's right of privacy. There was no special demurrer raising the objection that the counts were not properly arranged, as there was in Cooper v. Portner Brewing Company, 112 Ga. 894, 38 S.E. 91; and hence the petition is to be dealt with in relation to its substance, without reference to its form.

We will first deal with the general demurrer to the second count, which claimed damages on account of an alleged violation of the plaintiff's right of privacy. The question therefore to be determined is whether an individual has a right of privacy which he can enforce, and which the courts will protect against invasion. It is to be conceded that prior to 1890 every adjudicated case, both in this country and in England, which might be said to have involved a right of privacy, was not based upon the existence of such right, but was founded upon a supposed right of property, or a breach of trust or confidence, or the like, and that therefore a claim to a right of privacy, independent of a property or contractual right, or some right of a similar nature, had, up to that time, never been recognized in terms in any decision. The entire absence for a long period of time, even for centuries, of a precedent for an asserted right should have the effect to cause the courts to proceed with caution before recognizing the right, for fear that they may thereby invade the province of the lawmaking power; but such absence, even for all time, is not conclusive of the question as to the existence of the right. The novelty of the complaint is no objection, when an injury cognizable by law is shown to have been inflicted on the plaintiff. In such a case, "although there be no precedent, the common law will judge according to the law of nature and the public good." Where the case is new in principle, the courts have no authority to give a remedy, no matter how great the grievance; but where the case is only new in instance, and the sole question is upon the application of a recognized principle to a new case, "it will be just as competent to courts of justice to apply the principle to any case that may arise two centuries hence as it was two centuries ago." Broom's Legal Maxims (8th Ed.) 193. This results from the application of the maxim, "Ubi jus ibi remedium," which finds expression in our Code, where it is declared that "for every right there shall be a remedy, and every court having jurisdiction of the one may, if necessary, frame the other." Civ. Code 1895,§ 4929.

The individual surrenders to society many rights and privileges which he would be free to exercise in a state of nature, in exchange for the benefits which he receives as a member of society. But he is not presumed to surrender all those rights, and the public has no more right, without his consent, to invade the domain of those rights which it is necessarily to be presumed he has reserved, than he has to violate the valid regulations of the organized government under which he lives. The right of privacy has its foundation in the instincts of nature. It is recognized intuitively, consciousness being the witness that can be called to establish its existence. Any person whose intellect is in a normal condition recognizes at once that as to each individual member of society there are matters private, and there are matters public so far as the individual is concerned. Each individual as instinctively resents any encroachment by the public upon his rights which are of a private nature as he does the withdrawal of those of his rights which

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are of a public nature. A right of privacy in matters purely private is therefore derived from natural law. This idea is embraced in the Roman's conception of justice, which "was not simply the external legality of acts, but the accord of external acts with the precepts of the law, prompted by internal impulse and free volition." McKeldey's Roman Law (Dropsie) § 123. It may be said to arise out of those laws sometimes characterized as "immutable," "because they are natural, and so just at all times and in all places that no authority can either change or abolish them." 1 Domat's Civil Law by Strahan (Cushing's Ed.) p. 49. It is one of those rights referred to by some law writers as "absolute"DD--'FF'such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society or in it." 1 Bl. 123. Among the absolute rights referred to by the commentator just cited is the right of personal security and the right of personal liberty. In the first is embraced a person's right to a "...

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