Bremmer v. Journal-Tribune Pub. Co.

• Decision Date: 09 May 1956
• Docket Number: No. 48768,JOURNAL-TRIBUNE,48768
• Citation: 247 Iowa 817,76 N.W.2d 762
• Parties: Joseph H. BREMMER, and Mrs. Joseph H. Bremmer, Husband and Wife, Appellants, v.PUBLISHING COMPANY, Appellee.
• Court: Iowa Supreme Court

Page 762

76 N.W.2d 762

247 Iowa 817

Joseph H. BREMMER, and Mrs. Joseph H. Bremmer, Husband and Wife, Appellants, v. JOURNAL-TRIBUNE PUBLISHING COMPANY, Appellee.

No. 48768.

Supreme Court of Iowa.

May 9, 1956.

John Hutchinson, Sioux City, for appellants.

Shull, Marshall, Mayne, Marks & Vizintos, Sioux City, for appellee.

OLIVER, Justice.

This is an action for damages brought by the parents of eight year old Jimmy Bremmer, deceased, for invasion of their right of privacy. The petition alleges plaintiffs' son Jimmy disappeared from his Sioux City home and remained missing for approximately one month until September 29, 1954, when his mutilated and decomposed body was discovered in a field near Sioux City; that on said date the evening edition of defendant newspaper carried on the front page a large picture of the site where the body was found, 'that toward the bottom center of the photograph the mutilated and decomposed body of Jimmy Bremmer lay exposed.' That because the picture of the body was exposed to the public view and more particularly to the view of the parents, Mr. and Mrs. Joseph Bremmer, the constitutional right of privacy of Mr. and Mrs. Joseph Bremmer was invaded; further that because of the publication of the aforementioned photograph by the Journal-Tribune Publishing Company, the parents of Jimmy Bremmer, Mr. and Mrs. Joseph Bremmer have suffered untold mental anguish and humiliation and will continue to do so in the future; that by reason of such suffering and humiliation, Mr. and Mrs. Joseph Bremmer have been damaged in the sum of Thirty five Thousand Dollars ($35,000.00)'. Judgment for that amount is prayed.

In Division I of its answer, defendant denied any rights of plaintiffs were violated or invaded. Divisions II, III and IV alleged the circumstances of the disappearance and discovery of Jimmy Bremmer were matters of great public interest and the pictures and news items published by defendant were privileged and plaintiffs suffered no legal wrong; that plaintiffs solicited the widest possible publicity and waived and consented to the same, including the pictures complained of; and that there was no such right of privacy as claimed by plaintiffs.

Plaintiffs moved to strike Divisions II, III and IV as conclusions, improper in substance, meaningless, incompetent, not based on facts pleaded, and matters at best evidentiary. The motion to strike was overruled. Plaintiffs replied, denying each and every allegation in Divisions II, III and IV of the answer. Thereafter, defendant moved for dismissal, asserting plaintiffs' motion to strike amounted to an application to adjudicate points of law under 58 I.C.A. R.C.P. 105, Separate Adjudication of Law Points, and that the ruling thereon, which, defendant asserted, held in effect there was no cause of action in Iowa based upon invasion of right of privacy, disposed of all the issues of the case, became the law of the case and was binding upon all parties in any subsequent proceedings.

The trial sustained the motion to dismiss. From the judgment rendered against them thereon, plaintiffs have appealed.

I. Some procedural aspects of the case will be first considered. Defendant's contention the order overruling plaintiffs' motion to strike had the effect of an order under R.C.P. 105, and thus became the law of the case, is not well founded. An application to adjudicate law points under R.C.P. 105 is not technically a motion and the effect of a ruling or order thereon is not the same as the effect of an order on a motion assailing a pleading. See Litchford v. Iowa-Illinois Gas & Electric Co., 247 Iowa ----, 75 N.W.2d 346. The order overruling plaintiffs' motion to strike was not an adjudication against plaintiffs as an order under R.C.P. 105 would have been. After the order was made plaintiffs filed a reply, as was their rights. See Ranslow v. U. S. Fidelity & Guaranty Co., 243 Iowa 731, 733, 734, 53 N.W.2d 247, 248, R.C.P. 73 and 104(c). Nor did the order become the law of the case which the trial court was required to follow. Had the proposition been properly presented to the trial court again, it could have made a contrary order. Kuiken v. Garrett, 243 Iowa 785, 790-793, 51 N.W.2d 149, 153, 154, 41 A.L.R.2d 1397.

However, the trial court did not determine defendant's contention the order overruling the motion to strike became the law of the case. The order sustaining the motion to dismiss shows the court considered 'that the present pleading attacks the validity of the petition, and particularly whether or not any cause of action is stated therein. * * * The court is of the opinion that said petition does not state a cause of action against the defendant.' Hence, it appears the distinguished trial court treated the motion to dismiss as a motion for judgment on the pleadings under R.C.P. 222. See Kriv v. Northwestern Securities Co., 237 Iowa 1189, 1195, 24 N.W.2d 751; Article by Charles W. Joiner, 32 Iowa Law Review 417, 419. Plaintiffs do not complain of this procedure and its propriety need not be here determined.

II. The 'right of privacy' has been defined as the right of an individual to be let alone, to live a life of seclusion, to be free from unwarranted publicity. 77 C.J.S., Right of Privacy, § 1; 41 Am.Jur., Privacy, section 2; Prosser's Handbook of the law of Torts, 2nd edition, 1955, Chapter 20, Privacy. Violation of the right of privacy is a tort.

Defendant points out that neither the statutes of Iowa nor the decisions of this court recognize the right of privacy. Hence, it contends no action for the violation of such right may be maintained in Iowa. With this contention we do not agree.

Prior to 1890 no English or American court had ever granted relief expressly based upon the invasion of such a right. In that year attention was directed to it by an article by Samuel D. Warren and Louis D. Brandeis in 4 Harvard Law Review 193, entitled, 'The Right to Privacy.' Later the doctrine was advocated in numerous articles by other writers and statutes relating to it were adopted in several states. The first decision by the highest appellate court of a state, recognizing the doctrine, was Pavesich v. New England Life Ins. Co., 1905, 122 Ga. 190, 50 S.E. 68, 69, L.R.A. 101, 106 Am.St.Rep. 104, 2 Ann.Cas. 561. That decision has been followed by many courts of this country. Now the courts of approximately twenty states recognize the right of privacy. In three other states it is limited by statute and in only four do the courts reject it. A footnote to Hazlitt v. Fawcett Publications, D.C.Conn.1953, 116 F.Supp. 538, 542, 543, lists these to 1953. There are annotations on the right of privacy in 138 A.L.R. 22, 168 A.L.R. 446, and in 14 A.L.R.2d 750. See also The Right of Privacy, Louis Nizer, 39 Mich.Law Review 526. Section 867, Restatement of the Law, Torts, entitled, 'Interference with Privacy', states:

'A person who unreasonably and seriously interferes with another's interest in not having his affairs known to others or his likeness exhibited to the public is liable to the other.'

The modern doctrine of the right of privacy is a development of the common law to fill a need for the protection of the interest which a person has in living without unwarranted publicity. The doctrine is supported by the great weight of authority in this country and we are satisfied it is sound. Hence, we hold an action for interference with such right may be maintained in this jurisdiction.

III. The ultimate question here is whether plaintiffs' pleading alleged facts sufficient to constitute an unwarranted invasion of their right of privacy. It is conceded the picture of the portion of the field with the body thereon was part of a current news item published in a newspaper. In argument plaintiffs refer to statements in 'accompanying articles' in the newspaper. Obviously, the finding of the body of the local boy who had been missing for a month was a top rank news story. Plaintiffs concede, 'it may be true that the public was interested in the fact that the missing Bremmer boy was found * * *.' A general rule set out in the comment to section 867, Restatement of the Law, Torts, and repeated in many decisions is: 'One who unwillingly comes into the public eye * * *, is subject to the same limitations upon his right to be let alone. Community custom achieves the same result with reference to one * * * or the subject of a striking catastrophe. Both groups of persons are the objects of legitimate public interest during a period of time after their conduct or misfortune has brought them to the public attention * * * they are subject to the privileges which publishers have to satisfy the curiosity of the public as to their leaders, heroes, villains and victims.'

77 C.J.S., Right of Privacy § 2, p. 399, states in boldface: '* * * the disemination of news or news events does not generally constitute an invasion of the right (of privacy).'

Hazlitt v. Fawcett Publications, Inc., D.C.Conn.1953, 116 F.Supp. 538, 545, exemplifies the difference between the dissemination of news and a publication not a vehicle of information. There the court stated with reference to the privacy count: 'If * * * the story * * * was fictionalized * * *, I may not now rule, as a matter of law, that it was of legitimate public interest because informational and on that account not actionable. * * * Thus this count may be deemed to state an actionable claim on the theory that the published story was in essence not a vehicle of information but rather a device to facilitate commercial exploitation.'

Cason v. Baskin, 1944, 155 Fla. 198, 20 So.2d 243, 168 A.L.R. 430, is a similar decision.

Leverton v. Curtis Pub. Co., 3 Cir., 1951, 192 F.2d 974, 976, states with reference to the publication in a newspaper of a picture of that plaintiff as she lay in a street immediately after having been struck by an automobile, 'If it invaded the right of the plaintiff to stay out of public...