Bazemore v. Savannah Hospital

• Docket Number: 7490.
• Decision Date: 01 October 1930
• Citation: 155 S.E. 194,171 Ga. 257
• Parties: BAZEMORE et al. v. SAVANNAH HOSPITAL et al.
• Court: Georgia Supreme Court

155 S.E. 194

171 Ga. 257

BAZEMORE et al. v. SAVANNAH HOSPITAL et al.

No. 7490.

Supreme Court of Georgia

October 1, 1930

Error from Superior Court, Chatham County; P. W. Meldrim, Judge.

Petition by W. H. Bazemore, Jr., and another, against the Savannah Hospital and others. Judgment for defendants, and plaintiffs bring error.

Reversed.

HILL J., and BECK, P.J., dissenting.

Syllabus by the Court.

Petition by parents of deceased child against hospital, photographer and newspaper for damages, and to enjoin unauthorized publication of picture of malformed child, stated cause of action; petition will not be dismissed as whole if stating cause of action for any of relief prayed.

The petition by the parents of a deceased child set out a cause of action for damages, and for injunction, for the unauthorized publication and circulation of the picture of said child. A petition will not be dismissed as a whole, if it sets out a cause of action for any of the relief prayed. It follows that the court erred in sustaining the general demurrer and dismissing the case. The court did not pass on the special demurrers, and no ruling is made thereon.

William H. Bazemore, Jr., and Mrs. Slatie Merl Bazemore, of Glennville, Ga., brought a petition against the Savannah Hospital, George R. Foltz, and the Savannah Press, for damages, injunction, etc., and alleged substantially the following: On May 29, 1928, there was born to petitioners a male child at Glennville, Ga., the child being born with its heart on the outside of its body. The child was carried by the family physician to the Savannah Hospital for an operation; the operation was unsuccessful, and the child died. Neither of petitioners was present at the hospital at the time of the operation. Disregarding the rights of privacy of petitioners, the Savannah Hospital allowed or permitted defendant Foltz to photograph and portray said child in a nude condition, and gave to or acquainted the Savannah Press the extrinsic facts in the case without permission or knowledge of petitioners. In violation of the confidence and trust reposed in Savannah Hospital, it did wantonly maliciously, recklessly, and disregarding the rights of petitioners, expose the case to the public through the defendants Foltz and Savannah Press, which is a trespass upon petitioners' right of privacy. Foltz is commercializing said pictures for his own pecuniary gain, having sold several of the pictures to named persons, and to others unknown, such sale and exposure of the pictures being to the chagrin, mortification, humiliation, insult, and injury of petitioners, and a trespass upon their rights of privacy. The publication by the Savannah Press of the picture of the child showing its physical condition, and commenting upon the fact, is a trespass upon plaintiffs' rights of privacy, and was caused by breach of confidence and trust reposed in the Savannah Hospital. All of these acts on the part of the defendants have caused petitioners pain and distress and are considered by them a disgrace; their good name has been attacked; they have been greatly shocked, humiliated, and made sick, and have been obliged to employ a physician for their treatment, incurring expense thereby; and plaintiffs' health has been impaired by the acts of the defendants, being in a highly nervous state and on the verge of collapse. The prayers are that Foltz be restrained from further photographing, making, or publishing, or reprinting or exposing the picture from the negative of petioners' child, and from selling or offering to sell the negative or picture; that the Savannah Press be restrained and enjoined from altering the status of the articles as published by it or the negative procured from Foltz; that Foltz be required to answer under oath how many pictures he has sold from the negative, and what remuneration he has received therefor; that Savannah Press be required to deliver in court the publication and picture or cut with reference to the child; and for damages in the sum of $20,000 against the defendants jointly and severally.

The petition as amended alleged that plaintiffs had the right to have their child properly treated in said institution, and the extrinsic facts kept secret and undisclosed, as well as the right to have their child and its sexual organs kept properly covered and unexposed; that, believing that said institution would properly perform its duties, of which plaintiffs had the right to and did trust would be followed, and reposing said trust in said institution, relying upon the faith and trust, they permitted their child, not waiving any of their personal rights, to be taken to said institution; that it was the duty of said hospital, upon the arrival of said child, to properly care for and administer to it such skill, comforts, and protection as would safely protect it was an invasion of an unauthorized person or persons, whereby its monstrosity and nude condition would likely be exposed to any person or persons, and particularly to the public; and that Savannah Hospital is an eleemosynary institution, but derives a revenue from its business and maintains a training school for nurses. The defendants filed separate demurrers, both general and special. The special demurrers were met by amendment. The general demurrers were renewed and were sustained, and the case was dismissed. The plaintiffs excepted. The special demurrers were not passed upon by the judge. The grounds of general demurrer were that the petition set out no cause of action; that there was a misjoinder of parties plaintiff and defendant; that the damages were too remote to be the basis of recovery, and were not the natural and proximate result of any act of defendants alleged.

Frederick A. Tuten, of Savannah, for plaintiffs in error.

Anderson, Cann & Cann, and Geo. H. Richter, all of Savannah, for defendants in error.

PER CURIAM.

In Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68, 69 L.R.A. 101, 106 Am.St.Rep. 104, 2 Ann.Cas. 561,

this court ruled as follows: "The publication of a picture of a person, without his consent, as a part of an advertisement, for the purpose of exploiting the publisher's business, is a violation of the right of privacy of the person whose picture is reproduced, and entitles him to recover, without proof of special damage." In that case the plaintiff sought damages for the unauthorized publication of his own picture. In this case the plaintiffs seek damages for the unauthorized publication of the picture of their deceased infant child. The distinction between the two cases is in the particulars pointed out, but in both cases the petitions alleged damages and injury to the plaintiffs. The petition in the present case, among other allegations, contains the following: "The photographing of and making the picture of said child and publishing same was much to the chagrin, mortification, humiliation, insult and injury of plaintiffs, and the acts and conducts of defendants are a serious injury to plaintiffs and an insult inflicted upon them which money cannot repair and which time cannot eradicate, and same was done wantonly, maliciously, recklessly, negligently, and without regard of the rights of petitioners. Your petitioners show, that, in consequence of the conduct of defendants in the publication and circulation of said pictures the making and selling and exposing of same, their good name has been attacked; that they have been greatly shocked, humiliated, and made sick, and have been obliged to employ a physician for their treatment and incurred a physician's and medical bill, the exact sum or sums they are unable to state at this time, but to the best of their knowledge and belief will be approximately two hundred fifty dollars." The suit is not based on injury to the deceased child. According to the allegations, the wrongs done by the defendants were committed after the death of the child. Therefore in this case there is no question of the survival of a right of action. The right, if it ever existed or now exists, began after the death of the child, and is a right of action on the part of the plaintiffs.

In Chapman v. Western Union Telegraph Co., 88 Ga. 763, 15 S.E. 901, 17 L.R.A. 430, 30 Am.St.Rep. 183, it was held "A person to whom a telegraphic message was addressed and sent, informing him of the desperate illness of his brother and requesting him to come, is not entitled to recover of the telegraph company damages on account of mental pain and suffering, alleged to have resulted to the plaintiff from failure of the company to deliver him the message in due time, and from delaying delivery till too late to take the last train available for reaching the brother before his death occurred." But it was distinctly pointed out in the opinion that the petition alleged no damages to the plaintiff except for mental pain and suffering. Therefore that case differs from the present. That case was considered by this court in arriving at a decision in the Pavesich Case, where this court said: "The effect of that decision is simply that in an action upon a contract, *** damages for mental pain and suffering cannot be recovered, when no other damages have been sustained. Mr. Justice Lumpkin, in his opinion, distinctly recognizes that where there has been an invasion of a right, from which the law would presume damages to flow, additional damages for pain and suffering might be recovered." Again, the court said: "It is well settled that, if any contract or property right or trust relation has been violated, damages are recoverable. There are many cases which sustain such a doctrine." In Jacobus v. Congregation of Children of Israel, 33 S.E. 853, 73 Am.St.Rep. 141, plaintiffs brought suit for damages, alleging that defenda...