Candebat v. Flanagan

• Citation: 487 So.2d 207
• Decision Date: 16 April 1986
• Docket Number: No. 55374,55374
• Parties: 12 Media L. Rep. 2149 Irene CANDEBAT and James Candebat, Sr. v. N.J. FLANAGAN, A.D. Burns, and the National Motorist Association, Inc., a Mississippi Corporation.
• Court: United States State Supreme Court of Mississippi

Page 207

487 So.2d 207

12 Media L. Rep. 2149

Irene CANDEBAT and James Candebat, Sr. v. N.J. FLANAGAN, A.D. Burns, and the National Motorist Association, Inc., a Mississippi Corporation.

No. 55374.

Supreme Court of Mississippi.

April 16, 1986.

George E. Gillespie, Jr., Joel Johnson, Gillespie & Rogers, Hattiesburg, John V. Woodfield, Rose & Woodfield, Gulfport, for appellants.

Leslie Scott Sheffield, Bryan, Nelson, Allen, Schroeder & Cobb, Gulfport, for appellees.

Before ROY NOBLE LEE, P.J., and SULLIVAN and ANDERSON, JJ.

ANDERSON, Justice, for the Court:

This is an appeal from the order of the Circuit Court of Harrison County directing a verdict for the defendant in a civil suit. Finding the trial judge in error, we reverse.

The National Motorist Association is a Mississippi corporation owned and operated by the family of N.D. Burns of Gulfport. It offers motorists various emergency road services and reimbursement of certain costs in the manner of other similar automobile associations. The association has an accident coverage program which provides that members will receive $60 per day for every day of hospitalization up to 300 days.

In November 1977, James Candebat, a tire salesman, bought a membership in the National Motorist Association (NMA) from its salesman, defendant N.J. Flanagan.

On December 12, 1977, Candebat and his family were involved in a collision in Gulfport. A drunk driver with no insurance drove his car head-on into the Candebats' pickup truck. Candebat's wife, Irene, suffered numerous serious injuries in this crash. She was in a coma for almost a month and was hospitalized for more than three months. During this crisis Mr. Candebat took leave of absence from his job in order to attend his wife and look after their children. During this period Candebat frequently encountered Flanagan at the hospital and engaged him in conversation. During one of these conversations, Candebat confided that he was uncertain as to whether he would retain his present job. Flanagan intimated that there might be a position at NMA for Candebat; Candebat expressed some interest in the possibility.

The association duly paid the Candebats their hospitalization allowance. Beginning in late February or early March, James Candebat began receiving inquiries from friends and even strangers about his wife's accident and the benefits they had received from the association. In the course of these various discussions, Candebat received information that the NMA's salesmen were using a sales kit which contained information about his wife's accident and copies of the checks mailed to them. In June or July of 1978, Candebat called the association's office to complain about the use of this information. Nonetheless, the unwelcome attention of outsiders persisted, together with rumors that the use of this information was continuing. Candebat then retained a lawyer who wrote a letter to the association dated October 27, 1978, asking that the association desist from this practice. The association did not reply, but issued a sales bulletin ordering its sales force to stop using the Candebat material in their promotions. Rumors continued and on December 11, 1978, the Candebats' lawyer mailed the association another letter of complaint. This time the association, by its president, A.D. Burns, answered and assured Candebat that the practice had been discontinued. Flanagan came to Candebat's work place and apologized personally, pledging that the practice had been halted. However, there was testimony that as late as February 1979 the Candebat materials were still being used, even by Flanagan himself.

On December 4, 1979, the Candebats filed a complaint in the Circuit Court of Harrison County charging the NMA, along with its president, Burns, and Flanagan, with invasion of their privacy through the appropriation of their names for commercial purposes without their consent. The complaint sought $50,000 in actual damages and $50,000 against each defendant in punitive damages.

The cause was heard on August 2, 1982. At trial, the Candebats indicated their deep distress at knowing that the details of their personal tragedy had been divulged to strangers. Mrs. Candebat testified that she had grown so nervous that she feared to remain in her house alone.

At the close of the plaintiffs' case-in-chief, the trial judge directed a verdict for the defendant, holding that there had been no showing of damage to the Candebats owing to the association's conduct. Shortly thereafter, the Candebats perfected this appeal.

LAW

The trial judge granted the motion for directed verdict after stating his opinion that in order to recover for an invasion of privacy, one must specify his damages, and for punitive damages to be available, there must be "malice, fraud, insult, [or] wanton and reckless disregard of plaintiff's rights". The Candebats argue on appeal that he misunderstood the very nature of the tort of invasion of privacy.

Although actions for the invasion of privacy have been rare in Mississippi, the tort has received almost universal recognition in the United States. Every state except Rhode Island provides either statutory or common law relief for it. Prosser & Keeton, The Law of Torts, Sec. 118 (5th Ed.1984). Mississippi gave implicit recognition to the tort in 1951. Martin v. Dorton, 210 Miss. 668, 672-73, 50 So.2d 391, 393 (1951). The recognition was made explicit in Deaton v. Delta Democrat Publishing Co., 326 So.2d 471, 473 (Miss.1976). In this century, the doctrines surrounding the tort and the right to privacy have undergone rapid and extensive development. In Re Brown, 478 So.2d 1033, 1039-1040 (Miss.1985). As Prosser remarks, "What has emerged is no simple matter. As it has appeared in the cases thus far decided, it is not one tort, but a complex of four." Prosser, Sec. 117 at 851. As enumerated by Prosser, and recognized by this Court in Deaton v. Delta Democrat Publishing Co., 326 So.2d 471, 473 (Miss.1976), the four theories underlying the cause of action are as follows:

1. The intentional intrusion upon the solitude or seclusion of another;

2. The appropriation of another's identity for an unpermitted use;

3. The public disclosure of private facts; and

4. Holding another to the public eye in a false light.

This development is important because, as we shall see, the four sub-torts differ as to their elements and as to the damages available.

In the present case, the Candebats seem uncertain as to which of the sub-torts furnishes their theory of the case. In one point in their rebuttal brief, they assert that their case belongs to that sub-group dealing with "intentional intrusion upon the solitude and seclusion of another" rather than the "commercial appropriation" classification of the tort. (appellants' reply br. 4) If so, then the appellants have committed themselves to sustaining a much heavier burden. For this type of invasion of privacy, there is "no liability unless the interference with plaintiff's seclusion is a substantial one, of a kind that would be highly offensive to the ordinary reasonable man, as the result of conduct to which the reasonable man would strongly object." Restatement 2d of Torts, Sec. 652(b), Comment D (1977). See also, e.g., Wilson v. Retail Credit Co., 325 F.Supp. 460, 467 (S.D.Miss.1971) (must show bad faith or utterly reckless prying).

However, the pleadings clearly allege that the defendants "either caused to be or did appropriate the names of Mr. James Candebat, Sr. and Mrs. Irene Candebat for the commercial advantage of the corporate defendant ... to further the mercantile goals of aggrandize and enrich [said] defendant ... without the knowledge or express consent of the Candebats." Thus, the gravamen of this action is clearly the appropriation of the identity of the plaintiffs without their consent.

There is no dispute as to the existence of the cause in Mississippi. Nor is it disputed that in Mississippi damages for mental suffering can be recovered even though there was no physical impact. The appellee admits as much in his brief. The decisive question, then, is whether or not the damages sought in the complaint are of the type available under the sub-tort of appropriation. The trial judge ruled that they were not.

There are two principal schools of thought as to the damages available under the appropriation sub-tort. Courts side with one or the other according to their understanding of the nature of the interest protected by the action. Dean Prosser's comments on this issue are uncharacteristically opaque:

Although the element of protection of the plaintiff's personal feelings is not to be ignored in such a case, the effect of the appropriation decisions is to recognize or create an exclusive right in the plaintiff to a species of trade name, his own, and a kind of trademark in his likeness. It seems quite pointless to dispute over whether such a right is to be classified as "property"; it is at least clearly proprietary in its nature.

(Prosser & Keeton, Sec. 117 at 854).

Despite the many qualifications used by Prosser in this discussion, some courts have seized upon the property oriented language and argued that the damages available must be comparable to those available in other suits for misuse of plaintiff's property. That is, the plaintiff can recover only the value of what is lost.

One of the cases cited by appellee affords a striking example of this approach. In Cabaniss v. Hipsley, 114 Ga.App. 367, 151 S.E.2d 496 (1966), a female stripper was photographed while performing at a nightclub. Defendant somehow acquired this photograph and began using it to advertise his own nightclub, in which the plaintiff had not performed. Plaintiff sued for appropriation of her likeness. After quoting language from Prosser emphasizing the proprietary character of the interest, the Georgia court remarked "the main distinction between this aspect of privacy and the other three is the...