Abernathy v. Thornton, 6 Div. 874

• Decision Date: 22 September 1955
• Docket Number: 6 Div. 874
• Citation: 263 Ala. 496,83 So.2d 235
• Court: Alabama Supreme Court
• Parties: Lucy ABERNATHY v. Jay THORNTON et al.

Page 235

83 So.2d 235

263 Ala. 496

Lucy ABERNATHY v. Jay THORNTON et al.

6 Div. 874.

Supreme Court of Alabama.

Sept. 22, 1955.

Rehearing Denied Nov. 3, 1955.

D. G. Ewing, Earl McBee, Birmingham, and Alex. Smith, Jr., David McKay Enslen, Fayette, for appellant.

John A. Altman, Carrollton, and Edwood Rutledge, Haleyville, for appellees. Deramus, Fitts, Johnston & Mullins, Birlmingham, amici curiae.

SIMPSON, Justice.

Lucy Abernathy sued Jay Thornton, O. C. Morgan and Oscar Roden for alleged invasion of her right of privacy. The trial court sustained demurrer to the complaint and by reason of this adverse ruling the plaintiff took a nonsuit and brought this appeal.

The pertinent allegations of the complaint on which the plaintiff sought to rest her right of action are: In June, 1953, the defendants Thornton and Morgan were engaged in publishing a newspaper in Fayette, Fayette County, Alabama, under the name of The Northwest Alabamian and The Fayette Banner. Roden was employed by the newspaper as a reporter. On June 9, 1953, Curtis J. Abernathy, Jr., son of the plaintiff, was shot and killed in Winfield, Marion County, Alabama, by a bullet from a rifle striking him behind his left ear. The body of the deceased was carried to a funeral home, and while there the defendant Roden took a picture of the upper portion of deceased's body showing a metal object protruding from his head. On the 11th of June the picture was published in said newspaper, together with a news story of the shooting. The newspaper account was that a woman named Ann Hall, who had lived in Fayette as Mrs. C. J. Abernathy, Jr., before moving to Winfield, was placed in jail and charged with the murder of the plaintiff's son. It was also stated that the deceased was on parole from a federal offense and had served time in Kilby Prison (Alabama State Penitentiary), which account also reported that law enforcement officers were investigating the case. No mention was made of the plaintiff in the news story and nothing therein or on the accompanying photograph showed any relationship between the plaintiff and the deceased.

This court has had occasion recently to consider what constitutes an actionable invasion of the right of privacy. The action, of course, is in tort and it is said to be the unwarranted appropriation of exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities, in such manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities. Smith v. Doss, 251 Ala. 250, 37 So.2d 118; Birmingham Broadcasting Co. v. Bell, 259 Ala. 656, 68 So.2d 314.

But as was held in these two cases, the right of privacy does not prohibit the publication of matters which are of legitimate public or general interest, as where the plaintiff has become a public character and has thereby waived his right to privacy; or in the ordinary dissemination of news and events or in connection with the life of any person in whom the public has a rightful interest or where the information would be of public benefit.

It was pointed out in the Bell case, supra, that while a public character does not relinquish his right of privacy and his waiver thereof is limited to that which may be legitimately necessary and proper for public information, if the use of his name or picture is incidental to an occurrence of legitimate news value his right of privacy has not been unlawfully invaded.

One of the approved statements of the principle, pertinent here, is found in 4 Restatement of the Law (Torts), § 867, p. 400:

'One who unwillingly comes into the public eye because of his own fault, as in the case of a criminal, is bubject to the same limitations upon his right to be let alone. Community custom achieves the same result with reference to one unjustly charged with crime 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; until they have reverted to the lawful and unexciting life led by the great bulk of the community, they are subject to the privileges which publishers have to satisfy the curiosity of the public as to their leaders, heroes, villains and victims.'

The following from Cases on Torts, p. 504, by Hepburn (former dean of the University of Alabama Law School), impresses us as being a good statement of the theory:

'The right of privacy as recognized in a number of states has been defined as follows: 'The right of privacy may be defined as the right to live one's life in seclusion, without being...