Banks v. King Features Syndicate

• Decision Date: 14 September 1939
• Citation: 30 F. Supp. 352
• Parties: BANKS v. KING FEATURES SYNDICATE, Inc., et al.
• Court: U.S. District Court — Southern District of New York

30 F. Supp. 352

BANKS v. KING FEATURES SYNDICATE, Inc., et al.

District Court, S. D. New York.

September 14, 1939.

Frank P. Walsh, of New York City, and Roy F. Ford, of Tulsa, Okl., for plaintiff.

McCauley & Henry, of New York City (Charles Henry, of New York City, of counsel), for defendants.

CONGER, District Judge.

A woman, resident in Oklahoma, sues two New York corporations to recover money damages for the alleged invasion of her right of privacy. The defendants, before answer, challenge the sufficiency of the complaint, on the ground that it fails to state a claim upon which relief can be granted. Rule 12(b) (6), (d), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.

For the purpose of this motion, the following facts must be assumed:

In November, 1936, the plaintiff consulted two osteopathic physicians and surgeons at Tulsa, Oklahoma, who, in the course of their treatment, took and developed an X-ray picture of the plaintiff's pelvic region, which disclosed a six inch steel hemostat, or surgical clamp, in her abdomen. This foreign body, which plaintiff had carried for four years as the result of a prior operation, was removed by her Tulsa doctors.

These doctors (not sued), violating her confidence, and without her consent, turned over a copy of the X-ray to a Tulsa newspaper reporter (not sued). This reporter, in turn, for a consideration, passed the X-ray picture along to the defendant, King Features Syndicate, Inc. (hereafter referred to as King Features), which corporation received it with knowledge of the foregoing facts.

Thereupon, King Features caused an article to be written, which recounted the discovery of the hemostat in plaintiff's abdomen by means of an X-ray photograph; told of its removal; made mention of other cases where foreign matter was left in the bodies of patients after surgical operations; cited certain medical authorities on the subject, and explained the precautions taken by the medical profession to avert an incident such as this. King Features, after causing the X-ray and the accompanying article to be copyrighted, sold it to the defendant, New York Evening Journal, Inc. (hereafter referred to as the Journal).

These are the acts which King Features is said to have committed for purposes of trade.

It is said that the defendant Journal acted wrongfully, in that with knowledge of the means by which the X-ray picture was originally acquired, and for purposes of trade, it published the copyrighted article and X-ray on January 2, 1937 in the New York Journal-American, a newspaper which it owned, and which circulated throughout every state in the United States and the District of Columbia. "No recovery of damages is claimed or asked for herein in those states * * * where the right of privacy is not recognized". Plaintiff further asserts in her complaint "that her rights are recognized in all the states of the Union and District of Columbia", save and except the state of Washington, the state of Michigan and the state of Rhode Island, which three latter states have expressly rejected the doctrine of the right of privacy", and, continues the plaintiff, "no right of recovery or claim for damages is made insofar as the three last named states are concerned."

No claim is made that the copyrighted article, or the X-ray picture, is false or untrue. It is charged, however, that she has been caused to suffer humiliation, agony and loss of social prestige by this publicity.

This right of privacy, which plaintiff seeks to vindicate, is of modern origin. It has been defined as "the right to be let alone; the right of a person to be free from unwarranted publicity." 21 Ruling Case Law, p. 1196. In 54 Corpus Juris, p. 816, it...