736 F.2d 1084 (5th Cir. 1984), 83-2280, Wood v. Hustler Magazine, Inc.

Docket Nº:83-2280.
Citation:736 F.2d 1084
Party Name:Lajuan and Billy WOOD, Plaintiffs-Appellees, v. HUSTLER MAGAZINE, INC., Defendant-Appellant.
Case Date:July 23, 1984
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1084

736 F.2d 1084 (5th Cir. 1984)

Lajuan and Billy WOOD, Plaintiffs-Appellees,


HUSTLER MAGAZINE, INC., Defendant-Appellant.

No. 83-2280.

United States Court of Appeals, Fifth Circuit

July 23, 1984

Page 1085

Graves, Dougherty, Hearon & Moody, David H. Donaldson, Jr., Austin, Tex., for defendant-appellant.

Fisher, Roch & Gallagher, Ronald Wardell, Houston, Tex., for plaintiffs-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before GOLDBERG, RUBIN and REAVLEY, Circuit Judges.

REAVLEY, Circuit Judge:

Hustler Magazine invaded LaJuan Wood's privacy by publishing a stolen photograph, depicting LaJuan in the nude, that was submitted with a forged consent form. Although Texas courts have begun to flesh out the contours of the privacy cause first recognized in Billings v. Atkinson, 489 S.W.2d 858 (Tex.1973), they have not resolved issues critical to our disposition of this diversity case. We must determine the applicable statute of limitations for privacy actions as well as the level of fault required to impose liability for actual damages on a publisher who places a private figure in a false light. The case was tried to the bench. The district court held that the cause was not barred by limitations, that Hustler invaded the Woods' privacy by publishing the photograph without adequately verifying the truth of the consent form, and that she and her husband Billy were damaged in the amounts of $150,000 and $25,000, respectively. We affirm the judgment for LaJuan, but reverse the judgment for her husband.

I. Facts

LaJuan and Billy Wood went camping in a state park. While walking alone in a wilderness area, they became hot, disrobed, and went swimming in a river. Later they took several photos of each other in the nude. After returning home, Billy submitted the roll of film to an establishment that employed a mechanical developing process. They treated the photographs as private material, not showing them to anyone else and keeping them out of view in a drawer in their bedroom. One day, Steve Simpson, who resided in the other side of the Woods' duplex, broke into the Woods' home and stole some of the photos. Simpson and Kelley Rhoades, who was then his wife, decided to submit a nude photo of LaJuan to Hustler for publication in its "Beaver Hunt" section. Accordingly, they

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filled out a consent form that requested personal information. Some of the information was true, such as LaJuan's identity and her hobby of collecting arrowheads. Other information was false, such as LaJuan's age and address and a fantasy of being "tied down and screwed by two bikers." Kelley forged LaJuan's signature and they mailed the photograph and consent form to Hustler in California.

Hustler's "Beaver Hunt" section featured nude photographs, typically sent in by Hustler readers, of nonprofessional female "models." If a submitted photo was selected for publication, the model would receive a $50 fee. Although Hustler had maintained its "Beaver Hunt" section for some time, it did not have a written policy or procedure for verifying the accuracy of information and signatures contained in the consent forms when a photograph was to be published. Hustler's informal policy, however, was to call the telephone number listed in the consent form and ask whomever claimed to be the model nonleading questions designed to elicit responses that would confirm information in the consent form. If no telephone number was listed, Hustler would send a mailgram or telegram to the address shown for the model, requesting that Hustler be called collect. If either the consent form itself or the responses during verification caused Hustler to become suspicious, or if the model had developed doubts about appearing nude in print, Hustler was supposed to place the model's entry into a "Never to Run" category.

When the Hustler staff considered LaJuan's photo for publication, some employees thought that the name, "LaJuan Wood" was a play on words. In the photograph LaJuan was sitting on a horizontal portion of a tree trunk, creating the impression that "LaJuan Wood" was an alteration of "Lay You on Wood." "LaJuan" 's consent form did not list a telephone number, but provided that the $50 check be sent in Kelley's name to LaJuan's purported address. After Hustler selected LaJuan's photo, Kelley received a mailgram addressed to LaJuan and called Hustler. A Hustler staff member asked Kelley a series of leading questions, answerable by "yes" or "no," in a conversation that lasted only one or two minutes.

Hustler published LaJuan's photo in the February 1980 issue of Hustler with the caption, "Photo by Husband." The accompanying copy read, "Lajuan Wood is a 22-year old housewife and mother from Bryan, Texas, whose hobby is collecting arrowheads. Her fantasy is 'to be screwed by two bikers.' " Two other photos were on the same page against a background that resembled a bathroom-tile floor. The tip of a bare left foot appeared at the bottom of the page.

LaJuan and Billy first learned of the publication from friends. Although LaJuan initially did not believe that a photo of her had been published, the Woods confirmed the publication by obtaining a copy of the magazine. LaJuan suffered mental anguish and humiliation after learning of the inclusion of her photo in Hustler. She received a series of obscene telephone calls after the magazine appeared. To help her in dealing with her feelings of degradation and embarrassment, LaJuan required psychological counseling, which extended over a six-week period.

LaJuan and Billy sued Hustler for defamation and for invasion of privacy on two theories--publication depicting the subject in a false light highly offensive to a reasonable person and public disclosure of private facts not of legitimate public concern and highly offensive to a reasonable person. The district court determined that the law of Texas, not California, applied. Although the Woods' defamation cause was time-barred by article 5524, Tex.Rev.Civ.Stat.Ann. (Vernon 1958) (one year), the district court held that the privacy causes was governed by the two-year limitations period of article 5526. Holding that Hustler had invaded the Woods' privacy both by publicly disclosing private facts in an offensive manner and by placing them in an offensive false light, the court awarded $150,000 in compensatory damages to LaJuan and

Page 1087

$25,000 in compensatory damages to Billy. The court found that Hustler invaded Billy's privacy less intrusively and that some of his anguish was attributable to the invasion of his wife's privacy. Texas does not recognize a relational or derivative right of privacy. See Moore v. Charles B. Pierce Film Enterprises, Inc., 589 S.W.2d 489 (Tex.Civ.App.--Texarkana 1979, writ ref'd n.r.e.).

II. Choice of Law

Hustler argues that California substantive law applies to this case. See, e.g., Briscoe v. Reader's Digest Ass'n, 4 Cal.3d 529, 93 Cal.Rptr. 866, 483 P.2d 34 (1971) (en banc). The principal reason that Hustler urges application of California law is its shorter, one-year statute of limitations that applies to invasion of privacy actions. See Cal.Civ.Proc.Code Sec. 340(3) (West 1982 & Supp.1984). Hustler assumes that California's governing statute of limitations is substantive and that Texas would be required to apply California's limitations period if California had the most significant relationship to the parties and the dispute.

Sitting in diversity, we follow the conflict-of-law rules of Texas, the forum state. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). In Gutierrez v. Collins, 583 S.W.2d 312 (Tex.1979), the Texas Supreme Court adopted the "most significant relationship" test of the Restatement (Second) Conflict of Laws (1969). Section 6 of the Restatement recites general principles, and section 145 lists the contacts to be considered in applying section 6 to evaluate the significance of the relationship of a state's law to the parties, the issue, and the occurrence, ultimately to decide which law to apply.

The district court properly applied Texas law. Under section 145 of the Restatement, the contacts of Texas predominate: the injury occurred in Texas, the relationship of the parties was centered in Texas, and the plaintiffs' residence was in Texas. "In situations involving the multistate publication of matter that ... invades his right of privacy (see Sec. 153), the place of the plaintiff's domicil ... is the single most important contact for determining the state of the applicable law." Restatement (Second) Conflict of Laws Sec. 145 comment f (1969). The only contacts pointing to California are the defendant's place of business and the place...

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