Bitsie v. Walston

• Decision Date: 25 July 1973
• Docket Number: No. 1108,1108
• Parties: La Verne BITSIE, by her father and next friend, Oscar Bitsie, Plaintiffs-Appellants, v. James B. WALSTON, the United Cerebral Palsy Association and Journal Publishing Company, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 659

515 P.2d 659

85 N.M. 655

La Verne BITSIE, by her father and next friend, Oscar

Bitsie, Plaintiffs-Appellants, v. James B. WALSTON, the United Cerebral Palsy Association and Journal Publishing Company, Defendants-Appellees.

No. 1108.

Court of Appeals of New Mexico.

July 25, 1973.

Certiorari Denied Sept. 7, 1973.

Lorenzo A. Chavez, Melvin L. Robins, Leof Strand, Albuquerque, forplaintiffs-appellants

William S. Dixon, Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, for defendant-appellee James B. Walston.

Turner W. Branch, Branch, Dickson, Dubois & Wilson, Albuquerque, for defendant-appellee The United Cerebral Palsy Assn.

J. J. Monroe, Johnson, Paulantis, Lanphere & Monroe, Albuquerque, for defendant-appellee Journal Publishing Co.

OPINION

WOOD, Chief Judge.

The trial court directed a verdict for defendants on plaintiffs' claim for invasion of privacy. Prior to trial, summary judgment had been granted to defendants on plaintiffs' claim for libel. This appeal challenges the correctness of both rulings. At the State Fair in 1970, Walston took a photograph of La Verne Bitsie, a Navajo child, then approximately 18 months old. The photograph was taken with the consent of her father, Oscar Bitsie. Walston prepared a sketch of La Verne and sent it to the father in February, 1971.

'The Arts' section of the Albuquerque Journal on Sunday, June 27, 1971, carried the headline: 'Cards by Local Artists to Benefit Cerebral Palsy Fund.' The article states: 'Note cards designed by five local artists are being sold by the Women's Committee of United Cerebral Palsy to help finance a pre-school for children afflicted with cerebral palsy.' The remainder of the article identifies six designs, states the price of the cards and where the cards could be purchased. One of the identified designs is: '* * * 'La Verne Bitsie, Navajo Girl' by Jim Walston, printed on tan paper. * * *'

Six photographs appear below the article. The photographs are of the designs identified in the article. One photograph is of the sketch of La Verne prepared by Walston.

Plaintiffs' suit for invasion of privacy and libel is based on the newspaper article and photograph.

Invasion of privacy.

New Mexico recognizes invasion of privacy as a tort for which damages may be recovered. Apodaca v. Miller, 79 N.M. 160, 441 P.2d 200 (1968); Blount v. T.D. Publishing Corporation, 77 N.M. 384, 423 P.2d 421 (1966); Hubbard v. Journal Publishing Company, 69 N.M. 473, 368 P.2d 147 (1962). The factual aspects of this tort have not as yet been delineated in New Mexico decisions. Compare Montgomery Ward v. Larragoite, 81 N.M. 383, 467 P.2d 399, 42 A.L.R.3d 859 (1970).

'* * * The plaintiff contends that the defendants appropriated her name and likeness without her consent and placed her in a false light in the public eye. * * *' Prosser, Law of Torts (4th Ed. 1971), indicates both items alleged--the appropriation and the placing in a false light--are two of the ways by which the tort may be committed. Prosser, supra, at 804 and 812. We proceed on the assumption that each of the claims allege the tort of invasion of privacy in New Mexico.

The three defendants present various contentions as to why they are not liable for an invasion of privacy in this case. We consider the contention common to each of the defendants. That contention is concerned with conduct for which liability is imposed and how that conduct is measured.

IV, Restatement of Torts § 867 (1939) states: 'A person who unreasonably and seriously interferes with another's interest in not having his affairs known to others or his likeness exhibited to the public is liable to the other.' Comment (d) to § 867 discusses conditions of liability. It states: '* * * liability exists only if the defendant's conduct was such that he should have realized that it would be offensive to persons of ordinary sensibilities. * * *'

Comment (d), supra, goes on to say: '* * * It is only where the intrusion has gone beyond the limits of decency that liability accrues. * * *' It also states: '* * * It is only when the defendant should know that the plaintiff would be justified in feeling seriously hurt by the conduct that a cause of action exists. * * *'

In some of the following cases, the courts have referred to 'limits of decency.' In others, the reference is to 'justified in feeling seriously hurt.' All, however, have applied the view that for liability, defendants' conduct must have been such 'that he (they) should have realized that it would be offensive to persons of ordinary sensibilities.' Varnish v. Best Medium Publishing Co., 405 F.2d 608 (2d Cir. 1968), cert. denied, 394 U.S. 987, 89 S.Ct. 1465, 22 L.Ed.2d 762 (1969); Leverton v. Curtis Pub. Co., 192 F.2d 974 (3rd Cir. 1951); Samuel v. Curtis Pub. Co., 122 F.Supp. 327 (N.D.Cal., S.D.1954); Reed v. Real Detective Pub. Co., 63 Ariz. 294, 162 P.2d 133 (1945); Gill v. Curtis Pub. Co., 38 Cal.2d 273, 239 P.2d 630 (1952); Cason v. Baskin, 155 Fla. 198, 20 So.2d 243, 168 A.L.R. 430 (1944); Davis v. General Finance & Thrift Corporation, 80 Ga.App. 708, 57 S.E.2d 225 (1950); Meetze v. Associated Press, 230 S.C. 330, 95 S.E.2d 606 (1956). The converse of this rule is stated in Blount v. T D Publishing Corporation, supra: '* * * The right of privacy is to be applied to the individual of ordinary sensibilities, not the super-sensitive. * * *'

Plaintiffs recognize the above rule is applicable in this case; we agree. The trial court applied this standard when it directed the verdict at the close of plaintiffs' case. Ordinarily, the question of whether defendants violated this rule is a jury question. See Varnish v. Best Medium Publishing Co., supra; Aquino v. Bulletin Company, 190 Pa.Super. 528, 154 A.2d 422 (1959). The trial court, by directing a verdict, determined the evidence was insufficient to support a verdict in plaintiffs' favor. See Brown v. Hall,80 N.M. 556, 458 P.2d 808 (Ct.App.1969). In reviewing the correctness of this ruling, we consider the evidence in the light most favorable to plaintiffs, who were resisting the motion for a directed verdict. Archuleta v. Johnston, 83 N.M. 380, 492 P.2d 997 (Ct.App.1971).

The father testified the newspaper story was offensive because La Verne's picture had been used with an article referring to cerebral palsy and at a time when she was in good health. According to the father, this means La Verne will have bad luck later in life. La Verne's grandmother testified that a 'strong assumption' from the newspaper story is that La Verne had cerebral palsy. The grandmother also testified the use of La Verne's picture in relation to the article 'wished her harm.' Benjamin Begay testified that this wish will become a reality. All of the foregoing testimony is on the basis of 'traditional' Navajo belief.

The evidence then is that the newspaper story was offensive to traditional Navajos. There is evidence that there are some 20,000 traditional Navajos in New Mexico. The right of privacy '* * * is a personal one, which does not extend to members of his family. * * *' Prosser, supra, at 814. Assuming, but not deciding, that the offense to traditional Navajos, including La Verne's father and grandmother, is evidence of an offense to La Verne (2 1/2 to 3 years old at the time of the newspaper publication), the evidence is insufficient for imposition of liability upon defendants. A traditional belief is one based on an inherited or established way of thinking; a cultural feature preserved from the past. Webster's Third New International Dictionary (1966). We cannot, as a matter of law, equate an offense to persons holding such a belief with an offense to persons of ordinary sensibilities.

The interest which one has to maintain his privacy is the basis of the tort for invasion of privacy. Restatement of Torts, § 867, supra, Comment (a). '* * * This interest appears only in a comparatively highly developed state of society. * * *' Restatement of Torts, § 867, supra, Comment (b). The protection afforded to this interest '* * * is relative to the customs of the time and place and to the habits and occupation of the plaintiff. One who is not a recluse must expect the ordinary incidents of community life of which he is a part. * * *' Restatement of Torts, § 867, supra, Comment (c). We cannot equate an offense to persons holding a traditional belief with an offense to persons of ordinary sensibilities because: (1) the tort relates to the customs of New Mexico at this time and does not extend to 'traditional' beliefs. (2) At this time the newspaper story is no more than an ordinary incident of the life of the New Mexico community, which is the developed society on which the interest in privacy is based. Our ruling, of no invasion of privacy as a matter of law, applies because there is no evidence that, as a matter of fact, the newspaper story offended persons of ordinary sensibilities.

Another aspect of the tort here involved is whether the defendants should have realized that the newspaper story would be offensive. Unless there is evidence that the defendants should have so realized, there is no basis for liability. Restatement of Torts, § 867, supra, Comment (d). Neither in brief nor argument did plaintiffs contend there was any evidence as to this requirement concerning Walston and The United Cerebral Palsy Association. We have reviewed the record; there is no such evidence as to these who defendants.

Plaintiffs assert there is evidence that the Journal should have known its story would have been offensive. This evidence is that the Journal, over a six or seven year period, had published 'dozens of articles' on Navajo customs and beliefs. There is no evidence that the traditional belief asserted in this case was involved in the previously published articles. There is no evidence as to what customs and beliefs were covered in those articles. The evidence as to previously published articles does not sustain an inference that the...