Berg v. Minneapolis Star & Tribune Co.

• Decision Date: 15 September 1948
• Docket Number: Civ. No. 2703.
• Citation: 79 F. Supp. 957
• Parties: BERG v. MINNEAPOLIS STAR & TRIBUNE CO.
• Court: U.S. District Court — District of Minnesota

79 F. Supp. 957

BERG v. MINNEAPOLIS STAR & TRIBUNE CO.

Civ. No. 2703.

United States District Court D. Minnesota, Fourth Division.

September 15, 1948.

A. R. Segal and Ralph L. Berman, both of Minneapolis, appeared in behalf of the plaintiff in opposition thereto.

Robert J. Christianson and John S. Pillsbury, Jr., both of Minneapolis, Minn. (Faegre & Benson, of Minneapolis, Minn., of counsel), appeared in behalf of defendant in support of said motion.

NORDBYE, District Judge.

At the time of the occurrence which forms the basis of this action, defendant was publishing a newspaper of general circulation in Minneapolis and throughout this State called "The Times, The Picture Newspaper." The complaint alleges that plaintiff is a resident of Minneapolis who "did lead a quiet peaceful life free from the prying curiosity and unmitigated gossip which accompanies fame, notoriety, and scandal; * * * did pursue his useful toil with its homely joys and destiny obscure, did deem it wise and provident and comforting to keep the noiseless tenor of his way far from the maddening crowd's ignoble strife of scandal and notoriety; * * * has ever shunned and avoided notoriety and publicity, and has ever held as precious his right of privacy relative to his personality, his acts, sayings, and pictures, in all his social relations, his church groups, and his business transactions." And that he "has never exhibited himself, nor exploited his family life, his reputation, or his picture for money, profit, or commercial gain." The complaint alleges further that defendant's agents "with deliberate intent, * * * and being specifically advised that they were forbidden to take, use, and publish in any shape, form, or posture the picture or pictures of the plaintiff, did" while plaintiff was in a courtroom of the District Court of Hennepin County, "wilfully and maliciously, with intent to injure this plaintiff and bring him into public notoriety and to destroy the comfort of his life, and also the peace and tranquility of his mind, and to thrust upon this plaintiff unsought, unwarranted, and undesired publicity and notoriety utterly obnoxious to the plaintiff and with intent to annihilate and destroy the seclusion of plaintiff's private life, and to exploit plaintiff's name and personality, did wilfully, wantonly, and maliciously take said plaintiff's picture * * * over and above the express protests of the plaintiff and his legal counsel, and did publish the said plaintiff's picture in the said `Times, The Picture Paper', on or about February 18, 1948, * * * together with certain comments thereon, over and above his express objections and expressions of disapproval."

Plaintiff then asserts that the picture and its publication in the defendant's edition on or about February 18, 1948, injured and damaged him in the following respects: "That the plaintiff's personality has been violated by being exposed, exhibited, and sold to the public; that the plaintiff's name has been cheapened and made notorious; that the plaintiff has been subjected to the contempt, ridicule, and inquisitive notice of the general public to the injury of his personality, his business associations, and the outrage of the finer sentiments of his nature, and to the humiliation of his self-respect; that plaintiff's peace of mind has been destroyed and disturbed; that plaintiff's privacy has been invaded and his right of privacy violated; that plaintiff, himself, a private person and having an individual personality, has been made notorious and conspicuous to the public and has been singled out for and indentified to the public notice and attention, which is utterly obnoxious to this plaintiff." And it is contended that, as a consequence thereof, he suffered to his damage great mental pain, anquish, humiliation and distress.

In view of the disposition of this motion on the alternative motion for summary judgment, it is not necessary to decide whether the complaint constitutes a cause of action upon which relief can be granted. The showing on the motion for summary judgment, together with the contents of the divorce file in Carl A. Berg v. Ruby V. Berg, File No. 446444, referred to in one of the affidavits proferred by the defendant, indicates the following:

Plaintiff was involved in a divorce suit, and on August 13, 1946, obtained an uncontested divorce decree and the custody of his two minor children. It would appear that thereafter, and in December, 1947, his former wife petitioned for an order setting aside and vacating the divorce decree on the alleged grounds that her husband had threatened her with bodily harm and that he would defame and slander her if she contested the divorce action. The petition of Mrs. Berg came on for hearing before one of the judges of the Hennepin County District Court, and on January 27, 1948, the court filed an order setting aside and vacating the judgment and decree granting plaintiff a divorce, and ordered that the divorce proceedings be placed on the trial calendar. The court found on the motion made to set aside the uncontested divorce decree that there was support for the contention that fraud had been perpetrated by the plaintiff, not only upon the defendant, but also upon the court and that the claimed acts of plaintiff constituted an obstruction to the administration of justice. Plaintiff filed a notice of appeal with supersedeas to the Supreme Court from this order, and the appeal is now pending. Although the order vacating the divorce decree is stayed pending the appeal, for convenience the parties will be referred to herein as husband and wife.

Thereafter, proceedings regarding the custody of the Berg children came before the Hennepin County District Court and a hearing was held before one of the judges of that court on February 17, 1948. The parties were in court with their two minor children. Plaintiff contended that his wife was not a proper person to have the custody of the children and offered testimony by several witnesses charging her with misconduct of a serious and somewhat scandalous nature. It was during a recess in this hearing and after the court had left the Bench that over the protests of Berg a photographer employed by the Times took his picture while he was in the courtroom. In the same issue of the paper in which plaintiff's picture was portrayed, there were also published pictures of the two children with their mother. The picture of plaintiff depicted him as a well-dressed man garbed in his overcoat and muffler facing the camera, and apparently it is a normal, natural likeness of the plaintiff. There is no contention to the contrary. From the picture as it was published, it would be quite impossible to tell whether it was taken in a courtroom or elsewhere. Under the picture of the plaintiff is the title, "Carl Berg, 37, Father of Children, Whose Custody He is Contesting." Under one of the pictures of Mrs. Berg and the children appears the following: "Mrs. Berg, 36, Comforts Youngsters During a Break in Trial," and below the other picture which shows Mrs. Berg with her arms around the children appears the following: "Bewildered, Charleen, 7, and Charles, 3½, Stick Close to Mother, Mrs. Berg." Under the three pictures appears a news item regarding the nature of the proceedings and a purported summary of some of the testimony of some of the plaintiff's witnesses regarding the unfitness of his wife to have custody of the two children. It is not claimed that the newspaper account of the proceedings is in error or presents anything but a reasonably correct summary of the testimony it purported to cover. Plaintiff bases his entire claim on the alleged wrongful use of this photograph taken over his objection and published in a daily newspaper of wide circulation. It does not appear that the news item itself forms any basis for his alleged cause of action, except the question as to whether or not it constitutes a legitimate news story and the bearing that may have upon the right of the defendant to publish plaintiff's picture in connection therewith. Plaintiff bases his action solely upon the theory that, under the common law, his right of privacy has been violated.

The pioneers in the enunciation of the doctrine of the right of privacy were the distinguished writers Samuel D. Warren and Louis D. Brandeis, later Justice Brandeis of the United States Supreme Court, who published an article in the year 1890 entitled The Right to Privacy, 4 Harvard Law Review 193. The article stressed the need of man to live his life without the intrusion of others upon his private affairs, and his inalienable right to live his life in solitude and privacy if he wills without unwarranted publicity regarding matters with which the public has no legitimate concern. In brief, it may be said that the doctrine is bottomed on man's "right to be let alone." This right was not recognized at common law prior to 1890, but its proponents urge its recognition as a part of the common law because the complexities and intensity of modern life require some protection to be accorded to him who desires to lead a life of privacy, seclusion and anonymity. Prior to 1890, it is generally conceded that the violations of the socalled right of privacy were not based upon the recognition of that right, but founded upon some right of property or a breach of trust or breach of confidence. The article of Warren and Brandeis was hailed as a treatise which created a new concept of a common law right and that it illustrated the well-known principle that the common law must keep abreast with the demands made by the continuous changes in modern society. The authors rationalized that the acceptance of this new concept of the common law was imperative under modern conditions of living because, among other things, "instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices...