Cabaniss v. Hipsley, 42177

• Decision Date: 07 September 1966
• Docket Number: No. 3,No. 42177,42177,3
• Citation: 151 S.E.2d 496,114 Ga.App. 367
• Parties: C. B. CABANISS et al. v. Lillian M. HIPSLEY
• Court: Georgia Court of Appeals

Page 496

151 S.E.2d 496

114 Ga.App. 367

C. B. CABANISS et al. v. Lillian M. HIPSLEY.

No. 42177.

Court of Appeals of Georgia, Division No. 3.

Sept. 7, 1966.

Rehearing Denied Sept. 29, 1966.

Syllabus by the Court

1. There was no evidence to sustain a verdict for the invasion of the right of privacy on the theory of intrusion upon plaintiff's seclusion or solitude, or into her private affairs.

2. The evidence did not authorize a verdict for the invasion of the right of privacy on the theory of public disclosure of embarrassing private facts about plaintiff, for any one of the following reasons: (a) the photograph which was published was not one which plaintiff wished to keep private, secluded or secret; (b) the photograph was not embarrassing, offensive or objectionable to her; (c) plaintiff sought and consented to the type of publicity which she received and so cannot complain of it.

3. There was no evidence to sustain a verdict for the invasion of the right of privacy on the theory of publicity placing plaintiff in a false light in the public eye, since she was heralded as a provocative and exciting exotic dancer, which she was.

4. The evidence did not authorize a verdict on the theory of appropriation of plaintiff's likeness for defendants' advantage because there was no proof of the advertising value of the use of the photograph in the manner and for the time it was appropriated.

(a) General damages for injury to feelings, sensibilities or reputation are not recoverable under this theory.

(b) The measure of damages to be applied for the appropriation of plaintiff's name or likeness for defendants' advantage is the value of the use of the appropriated matter during the period of appropriation.

5. The evidence did not support a verdict for general, special, or nominal damages against defendant Cabaniss on any theory.

6. The evidence did not authorize a verdict for punitive damages against defendant Cabaniss.

(a) To authorize an award of punitive damages for the invasion of the right of privacy, the invasion must be intentional or with knowledge or with malice or wrongful state of mind.

(b) Punitive damages are not recoverable unless a right to recover general, nominal or special damages is shown.

7. Mere negligence on the part of officers or agents of defendant On The Town, Inc., in delivering plaintiff's photograph for publication instead of the photograph of the actual performer, would not justify an award of punitive damages. If, however, on another trial the jury should find that there was an unauthorized appropriation of plaintiff's photograph and that defendant's acts and conduct were of a character to import a premeditated, or a conscious and deliberate continuation of the appropriation, an award of punitive damages would be authorized.

8. The admission of evidence as to what is not the custom of the trade was error. Admission of negative evidence should generally be restricted to a rebuttal of other evidence on the subject.

9. Enumeration of special errors, not likely to recur upon another trial, are not passed upon.

10. An isolated portion of the charge on the form of the verdict is not error, when considered with other portions of the charge, or with the charge as a whole.

Mrs. Lillian M. Hipsley brought an action against C. B. Cabaniss, individually and as publisher of Gay Atlanta magazine, and On The Town, Inc., d/b/a Atlanta's Playboy Club, seeking to recover damages for violation of her right of privacy. In court 1 she alleged that for the past six years she had been an 'exotic dancer' using the stage names of 'Melanie Lark' and 'Charming Charmaine De Aire' and in 1960 had had her photograph taken to be used for the purpose of advertising herself and her act at various night clubs and show places throughout the United States. She alleged that defendants had obtained a copy of the photograph in some unknown manner and, without her knowledge or consent, had published it in an advertisement carried in Gay Atlanta for several weeks inviting the public to Atlanta's Playboy Club. Under her photograph in the advertisement plaintiff was billed as 'Dawn Darling-Provocative and Exciting Exotic Dancer,' and with the assertion 'She's terrific.' She appeared in the photograph as a luscious, lithesome, bosomy brunette clad only in two tantalizing, titillating tassels and a scanty G-string. In naked truth she was, as advertised, utterly terrific. Whether it was pornography or erotic art is not for decision, but unquestionably it was calculated to excite an onanistic impulse. Plaintiff alleged that she had never appeared at Atlanta's Playboy Club nor used the stage name 'Dawn Darling' but that there was, in fact, another female dancing at the club under that name. Gay Atlanta was alleged to be a magazine distributed weekly in the City of Atlanta and to have a wide circulation among people who are looking for a place of entertainment and who consult it for the purpose of selecting various types of amusement. Upon trial before a jury the proof tended to support these allegations.

The injury complained of in count 1 was that the use of the photograph in the manner alleged had subjected plaintiff to great mental anguish and ridicule and had damaged her name and reputation as a professional entertainer. Judgment was sought for this injury in the amount of $50,000.00. Count 2 adopted by reference the above allegations and complained that the use of the photograph in the manner alleged, falsely representing plaintiff as appearing at the place of a non-member of the American Guild of Variety Artists, had adversely affected her reputation as an artist and her standing in the Guild. This complaint was stricken on amendment, however, leaving count 2 with the allegations as incorporated from count 1 with the added allegation that the photograph was used deliberately and maliciously with an intention on the part of defendants to mislead the public and thereby damage plaintiff's reputation, and punitive damages were sought for the alleged wilful and wanton tort.

The evidence adduced at the trial was incomplete and conflicting as to the exact manner in which the photograph came to be published in Gay Atlanta, but it seems clear that officers or agents of the corporate defendant in charge of advertising matters inadvertently supplied defendant publisher of Gay Atlanta with the wrong photograph.

The case was submitted to the jury with instructions pertaining to general damages for invasion of the right of privacy as to count 1, and punitive damages as to count 2. A verdict was returned for $10,000.00 on count 1 and $5,000.00 on count 2. To the overruling of a motion for new trial and of a motion for judgment notwithstanding the verdict the defendants appeal.

Johnson & Hayes, Herbert Johnson, Atlanta, for appellant.

Wall, Armstrong & Fuller, Alford Wall, Atlanta, for appellee.

EBERHARDT, Judge.

As Justice Cobb suggested in Pavesich v. New England Life Insurance Co., 122 Ga. 190, 50 S.E. 68, 69 L.R.A. 101, the recognition of the right of privacy, bringing to our law a new concept, made it inevitable that there by developments in its later consideration. Though it has not been pointed out in the subsequent cases before the Supreme Court, and only incidentally by this court in Ford Motor Co. v. Williams, 108 Ga.App. 21, 29, 132 S.E.2d 206, Dean Prosser has analyzed the many privacy cases in an article entitled 'Privacy,' published in 48 Calif.L.Rev. 383 in 1960, and in reviewing the cases he suggests that the invasion of privacy is in reality a complex of four loosely related torts; that there are four distinct kinds of invasion of four different interests of plaintiff; that there are four disparate torts under a common name. These four torts may be described briefly as: (1) intrusion upon the plaintiff's seclusion or solitude, or into his private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity which places the plaintiff in a false light in the public eye; (4) appropriation, for the defendant's advantage, of the plaintiff's name or likeness. We consider this analysis well-founded and take it as a starting point for our deliberations here. ¹

As To Both Defendants

1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.

This aspect of the right of privacy as a theory of recovery can be disposed of summarily, for the petition was not drawn nor was there evidence to sustain a verdict on it. For cases involving this aspect of the invasion of the right of privacy, see Newcomb Hotel Co. v. Corbett, 24 Ga.App. 533, 101 S.E. 713, and Newcomb Hotel Co. v. Corbett, 27 Ga.App. 365, 108 S.E. 309, where there was an intrusion into plaintiff's hotel room by the house detective who mistakenly believed that unauthorized people were present; Byfield v. Candler, 33 Ga.App. 275, 125 S.E. 905, where there was an unauthorized entry into plaintiff's stateroom; Young v. Western & A. R. Co., 39 Ga.App. 761, 148 S.E. 414, where there was an unauthorized and unlawful entry into plaintiff's house; McDaniel v. Atlanta Coca-Cola Bottling Co., 60 Ga.App. 92, 2 S.E.2d 810, where eavesdropping equipment was placed in plaintiff's hospital room for the purpose of listening to her conversations with her husband and others; Marcelli v. Teasley, 72 Ga.App. 421, 33 S.E.2d 836, where the owner of the property came upon the premises occupied by plaintiff and threatened eviction in a loud and profane manner in the presence of others; Walker v. Whittle, 83 Ga.App. 445, 64 S.E.2d 87, where there was a mistaken identity in the making of an arrest without a warrant; and Ford Motor Co. v. Williams, 108 Ga.App. 21, 132 S.E.2d 206, reversed on other grounds in 29 Ga. 505, 134 S.E.2d 32, where defendant, wrongfully suspecting plaintiff of having stolen certain goods, went to his house, broke in and removed the goods. See also Pinkerton National Detective Agency, Inc....