Barber v. Time, Inc.

• Decision Date: 26 February 1942
• Docket Number: 37651
• Parties: Dorothy Barber v. Time, Incorporated, a Corporation, Appellant
• Court: Missouri Supreme Court

159 S.W.2d 291

348 Mo. 1199

Dorothy Barber v. Time, Incorporated, a Corporation, Appellant

No. 37651

Supreme Court of Missouri

February 26, 1942

Appeal from Jackson Circuit Court; Hon. Thomas J. Seehorn Judge.

Affirmed (with directions).

Hurd & Vineyard, Cravath, DeGersdorff, Swaine & Wood and John F Harding for appellant.

(1) The decision of the circuit court, asserting and declaring the law of this State for the purposes of this case, violates the guarantees of freedom of speech and of the press contained in the Constitions of this State and the United States. (a) The appellate jurisdiction of this court is properly invoked on the grounds that the decision of the circuit court herein involves the construction of the Constitution of Missouri or the United States. Sec. 12, Art. VI, Mo. Constitution; Sec 5, Amend. of 1884, Mo. Constitution; Sec. 14, Art. II, Mo. Constitution; Sec. 30, Art. II, Mo. Constitution; Marx & Haas Jeans Clothing Co. v. Watson, 168 Mo. 133, 67 S.W. 391; Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736; Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625; Diener v. Star-Chronicle Pub. Co., 230 Mo. 613, 132 S.W. 1143; Lohmeyer v. St. Louis Cordage Co., 214 Mo. 685, 113 S.W. 1108; Chrismer v. Bell Tel. Co., 194 Mo. 189, 92 S.W. 378; Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900; Milk Wagon Drivers' Union of Chicago, Local 753 v. Meadowmoor Dairies, Inc., 312 U.S. 287, 61 S.Ct. 552; American Federation of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568. (b) The common law rule declared by the circuit court in the instant case constitutes an unreasonable and arbitrary restriction on the right of free speech and a free press, under circumstances not within the allowable power of the circuit court to afford protection to privacy. Sec. 4757, R. S. 1939; Munden v. Harris, 153 Mo.App. 652, 134 S.W. 1076; Binns v. Vitagraph Co., 147 A.D. 783, 132 N.Y.S. 237, affirmed 210 N.Y. 51, 103 N.E. 1108; Sweenek v. Pathe News, Inc., 16 F.Supp. 746; 4 Harvard Law Review 193, l. c. 218; Green v. Term. Railroad Assn., 211 Mo. 18, 109 S.W. 715; Epstein v. Pennsylvania Railroad Co., 250 Mo. 1, 156 S.W. 699; State v. Long, 257 Mo. 119, 165 S.W. 748; Sec. 1895, R. S. 1939; Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68; Moser v. Press Pub. Co., 59 Misc. 78, 109 N.Y.S. 963; People v. Robert R. McBride & Co., 159 Misc. 5, 288 N.Y.S. 501; Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736; Senn v. Tile Layers Protective Union, 301 U.S. 468, 57 S.Ct. 857; Carlson v. People of the State of California, 310 U.S. 106, 60 S.Ct. 746; Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900. (2) The court erred in refusing to give appellant's instruction in the nature of a demurrer asked at the close of all the evidence in the case. (a) The appellant's publication was not an invasion of privacy because, in jurisdictions where the right of privacy exists, a cause of action arises only in cases involving an advertising use or the use of indecent pictures. 4 Harvard Law Review 193, l. c. 216; Munden v. Harris, 153 Mo.App. 652, 134 S.W. 1076; Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68; Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442; Henry v. Cherry & Webb, 30 R. I. 13, 73 A. 97; Edison v. Edison Polyform Mfg. Co., 67 A. 392; Flake v. Greenboro News Co., 195 S.E. 55; Foster-Milburn Co. v. Chinn, 120 S.W. 364; Kunz v. Allen, 172 P. 532; Themo v. New England Newspaper Pub. Co., 27 N.E.2d 753; Sidis v. F-R Pub. Corp., 113 F.2d 806; Bazemore v. Savannah Hospital, 155 S.E. 194; Feeney v. Young, 191 A.D. 501, 181 N.Y.S. 481; Banks v. King Features Syndicate, 30 F.Supp. 352. (b) The publication by appellant of respondent's name and picture in connection with a report of a news event was not an invasion of the right of privacy. Sweenek v. Pathe News, Inc., 16 F.Supp. 746; Melvin v. Reid, 297 P. 91; Metter v. Los Angeles Examiner, 95 P.2d 491; Brents v. Morgan, 221 Ky. 765, 299 S.W. 967; Jones v. Herald Post Co., 18 S.W.2d 972; Binns v. Vitagraph Co. of America, 210 N.Y. 51, 103 N.E. 1108; Sidis v. F.-R. Pub. Corp., 113 F.2d 806; Colyer v. Richard K. Fox Pub. Co., 162 A.D. 297, 146 N.Y.S. 999; Kline v. Robert M. McBride & Co., 170 Misc. 974, 11 N.Y.S. (2d) 674; Themo v. New England Newspaper Pub. Co., 27 N.E.2d 753; Jeffries v. New York Evening Journal Pub. Co., 67 Misc. 570, 124 N.Y.S. 780; Sarat Lahiri v. Daily Mirror, Inc., 162 Misc. 776, 295 N.Y.S. 382; Middleton v. News Syndicate Co., Inc., 162 Misc. 516, 295 N.Y.S. 120; Smith v. Suratt, 7 Alaska Rep. 416. (3) The court erred in giving respondent's Instruction 2, authorizing the jury to award punitive damages, and in refusing to give appellant's Instruction D, withdrawing the assessment of punitive damages from the jury, because the evidence in this case was not sufficient to warrant an award of punitive damages. Munden v. Harris, 153 Mo.App. 652, 134 S.W. 1076; Wingate v. Bunton, 193 Mo.App. 470, 186 S.W. 32; Franz v. Hilterbrand, 45 Mo. 121; Ferguson v. Mo. Pac. Ry. Co., 177 S.W. 616; Reel v. Consolidated Inv. Co., 236 S.W. 43; Callahan v. Ingram, 122 Mo. 355, 26 S.W. 1020; Griffin v. Petree, 226 Mo.App. 718, 46 S.W.2d 609; 4 Harvard Law Review 193, l. c. 218; Hall v. St. Louis-S. F. Ry. Co., 224 Mo.App. 431, 28 S.W.2d 687; State ex rel. Kurn v. Hughes, 153 S.W.2d 46.

Allan R. Browne and Ralph E. Griffith for respondent.

(1) The circuit court decision does not violate the Constitution of Missouri or the United States. (a) While respondent would like a decision by this court on the questions involved herein, yet since the decision in the case at bar does not violate any constitutional guaranty, this court could not have jurisdiction, the amount of the judgment being $ 3,000. State v. McCave, 135 Mo. 450. (b) The decision in this case is not an unreasonable or arbitrary restriction of the rights of a free press, because it is restricting the abuse of that right. Cox v. New Hampshire, 61 S.Ct. 763; State ex rel. v. Coleman, 152 S.W.2d 641; Munden v. Harris, 153 Mo.App. 652; Pavesich v. New England, 122 Ga. 190; 54 C. J. 816, 818, 820, 821, 822, 823; 21 R. C. L. 1196, 1197, 1199; Foster v. Chinn, 134 Ky. 424; Brents v. Morgan, 221 Ky. 765; Kunz v. Allen, 102 Kan. 883; Edison v. Edison, 67 A. 392; Banks v. King, 30 F.Supp. 352; Gilpin v. Aetna, 132 S.W.2d 688; 48 C. J. 1111; Allen v. Ins. Co., 83 S.W.2d 192. (2) The instruction in the nature of a demurrer asked by appellant was properly refused because respondent made a good submissible case for the jury. (a) The right of privacy has been defined and held to be a right which arises not only in cases involving advertising use and use of indecent pictures, but in other types of cases such as would include the case at bar. Brents v. Morgan, 221 Ky. 765; Flake v. Greenboro, 195 S.W. 55; State ex rel. v. Harris, 153 S.W.2d 835; Williams v. Black, 124 N.W. 728; 4 Restatement of Law of Torts, p. 398; Mau v. Rio Grande, 28 F.Supp. 845; 1 Cooley on Torts (4 Ed.), sec. 135; Rhodes v. Graham, 37 S.W.2d 46; Mich. Law Review, Vol. 39, No. 4, pp. 526, 527, 528, 529, 530, 533, 536, 546, 547, 549. (b) The question of whether the alleged facts concerning respondent as set out in the story and her picture were news events was submitted to the jury and found adversely to appellant, and even news events can not be printed without limitation. Instruction 2 on punitive damages was proper, and Instruction D withdrawing punitive damages were properly given and refused respectively because punitive damages are a proper element under the facts in this case. McMillen v. Elder, 160 Mo.App. 399; Lampert v. Judge, 238 Mo. 409.

Hyde, C. Bradley and Dalton, CC., concur.

OPINION

PER CURIAM

This is an action for damages based on violation of plaintiff's right of privacy by publishing an article (with her picture) about a physical ailment for which she was being treated in a hospital. The jury returned a verdict for plaintiff for $ 1500 actual and $ 1500 punitive damages. Defendant has appealed from the judgment entered thereon, and says it was error to refuse its request for a peremptory instruction in the nature of a demurrer to the evidence.

Defendant set up in its answer the right to publish such an article under constitutional guarantees of freedom of speech and of the press. It contends that the decision of the trial court, allowing damages therefor, was in violation of Sections 14 and 30 of Article II of the Constitution of Missouri and of the Fourteenth Amendment to the United States Constitution. Recent decisions of the United States Supreme Court have held that "the freedom of speech and of the press, which are secured by the First Amendment against abridgement by the United States, are among the fundamental personal rights and liberties which are secured to all persons by the Fourteenth Amendment against abridgement by a State." [Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093, and cases cited.] The Fourteenth Amendment applies to the common law policy as well as the statutory policy of a state. [American Federation of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 513.] We also said in Diener v. Star-Chronicle Pub. Co., 230 Mo. 613, 132 S.W. 1143: "Freedom of speech is guaranteed to the individual and newspaper by the Constitution. Courts are charged with a duty they may not pretermit, to see to it that it is not abridged." Thus a case is presented "involving the construction of the Constitution of the United States" and "of this State" (Sec. 12, Art. 6, Constitution of Missouri) within the jurisdiction of this court. Likewise, it presents a constitutional question upon a set of facts which has not heretofore been decided in this State.

Defendant in its...