Brunson v. Ranks Army Store, 33809

• Decision Date: 23 December 1955
• Docket Number: No. 33809,33809
• Citation: 73 N.W.2d 803,161 Neb. 519
• Parties: James BRUNSON, Appellant, v. RANKS ARMY STORE, Appellee.
• Court: Nebraska Supreme Court

Page 803

73 N.W.2d 803

161 Neb. 519

James BRUNSON, Appellant, v. RANKS ARMY STORE, Appellee.

No. 33809.

Supreme Court of Nebraska.

Dec. 23, 1955.

Syllabus by the Court.

1. A general demurrer admits all the allegations of fact in the pleading to which it is addressed, which are issuable, relevant, and material, and which are well pleaded; but does not admit the conclusions of the pleader, except when they are supported by, and necessarily result from, the facts stated in the pleading. It does not admit inferences of the pleader from the facts alleged, nor mere expressions of opinion, nor theories of the pleader, as to the effect of the facts, nor allegations of what will happen in the future, nor arguments, nor allegations contrary to the facts of which judicial notice is taken, or which are contrary to law.

2. So much of the common law of England as is applicable and not inconsistent with the Constitution of the United States, with the organic law of this state, or with any law passed or to be passed by the Legislature of this state, is adopted and declared to be law within the State of Nebraska.

3. The doctrine of the right of privacy was not recognized or enforced in the ancient English common law.

4. There is no statutory provision in this state with reference to the doctrine of the right of privacy.

5. Mental anguish is not considered as an element of recovery in an action on an ordinary contract.

6. Damages for mental anguish for breach of contract are not generally recoverable for the reason that they are too remote and could not have been in the contemplation of the parties when the contract was made.

7. The amended petition of plaintiff examined and the separate demurrers thereto on the ground that the petition did not state a cause of action held to be properly sustained.

Victoria & Sloma, Omaha, for appellant.

Levin & Brodkey, Omaha, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

MESSMORE, Justice.

This is an action brought by James Brunson as plaintiff against Ranks Army Store as defendant in the district court for Douglas County to recover damages. The first cause of action is for breach of contract entered into by and between the plaintiff and defendant. The second cause of action is based on a violation of an alleged right of privacy. The defendant demurred separately to each cause of action on the ground that the facts set forth in plaintiff's amended petition on each cause of action failed to state facts sufficient to constitute a cause of action. The trial court sustained the defendant's demurrers. The plaintiff having elected to stand on his petition and not plead further, the trial court dismissed the cause at plaintiff's costs. Plaintiff perfected appeal to this court.

To determine whether or not the plaintiff's amended petition states a cause of action in the first and second counts thereof, it becomes necessary to set forth in substance certain of the amended petition.

The plaintiff's amended petition alleged that the plaintiff is a resident of Omaha, Douglas County, Nebraska, and the defendant is a company engaged in the sale of goods of every kind and nature with its place of business in Omaha; that the plaintiff is an actor, specializing in portrayals and characterizations; that on or about February 1, 1950, the defendant, by oral contract, hired the plaintiff to portray and to head and lead seven of defendant's employees in portraying the notorious payroll robbers of Brinks, a money-delivery firm of Boston, Massachusetts; that the plaintiff, knowing and realizing the realism of his portrayal and characterization, accepted the employment under the express promise of the defendant that defendant would secure the permission of the Omaha police department for the portrayal of said robbers of Brinks; that the said portrayal was to be an advertising scheme and stunt for and in behalf of the defendant and for defendant's benefit; that on or about February 4, 1950, in the morning, just before the plaintiff and said defendant's employees left for the downtown section of Omaha in their disguises as the robbers of Brinks, upon inquiry by the plaintiff he was told by the defendant that the Omaha police department's permission for the said portrayal had been obtained by the defendant; that as a matter of fact, however, the defendant failed and neglected to obtain and secure the permission of the Omaha police department; that as a direct result of this breach of contract by the defendant the plaintiff and his seven companions were arrested, detained, incarcerated for about an hour and a half, and then released on bond by the Omaha police department; that the Omaha World Herald, a daily newspaper with a very large circulation, carried in prominent places and in large headings the news of the arrest, incarceration, and the police appearance of the plaintiff and his seven companions, in fact through the able handling of the news by the newspaper these news items became of national importance and interest and were carried by a great many newspapers throughout the country; that this arrest and incarceration of the plaintiff and the publicity received have made the plaintiff the object of shame, severe, cruel, and most annoying, and disturbing criticism, abuse, and ridicule; that the knowledge of the plaintiff's arrest and incarceration by his many friends, his wide acquaintance, and by strangers as well, has brought disrepute to the plaintiff by marring his good name and by destroying his long-enjoyed good standing and good reputation in the community; that since the arrest and incarceration of the plaintiff and the publishing of the same in the World Herald and the shame, abuse, and ridicule, the loss of plaintiff's good standing and good reputation in the community, the plaintiff has suffered and will continue to suffer great and severe mental pain and anguish, shame, humiliation, and disrepute; that the loss of plaintiff's good reputation and standing has made it undesirable for reputable business firms and reputable business men to employ the plaintiff for their legitimate advertising; that the plaintiff was not employed for about 8 months immediately following the arrest, incarceration, and publication of the same; and that by the subsequent shame, abuse, ridicule, humiliation, pain, and mental anguish, and the loss of good standing, good reputation, and employment, the plaintiff has suffered damages.

In the second cause of action the plaintiff incorporates the allegations contained in paragraphs I, which designates the parties, and II of the first cause of action. Paragraph II relates that the plaintiff is an actor specializing in portrayals and characterization. The petition then alleges in substance that the defendant, willfully disregarding the plaintiff's rights and without the permission and consent of the plaintiff, ran an ad in the Omaha World Herald, a newspaper of large circulation, on the morning of February 7, 1950, as follows: 'Jim Brunson, professional stunt man of 38 years, put on such a sensational stunt that the whole crew were thrown in the clink'; that on the afternoon of the same day in said proper, the defendant ran another ad as follows: 'Ranks Gang Captured. The public can sign...