Cason v. Baskin

• Decision Date: 23 May 1947
• Citation: 30 So.2d 635,159 Fla. 31
• Parties: CASON v. BASKIN et al.
• Court: Florida Supreme Court

30 So.2d 635

159 Fla. 31

CASON v. BASKIN et al.

Florida Supreme Court

May 23, 1947

Rehearing Denied June 20, 1947.

Appeal from Circuit Court, Alachua County; John A. H murphree, judge.

Walton & Walton, of Palatka, and Clayton & Arnow, of Gainesville, for appellant.

Crawford & May, of Jacksonville, for appellees.

CHILLINGWORTH Associate Justice.

This is an appeal by plaintiff from a verdict and judgment for defendants, an author and her husband.

When this case was first before this Court, Cason v. Baskin, 155 Fla 198, 20 So.2d 243, the Court, in a comprehensive opinion prepared by Justice Brown, held the second count of the declaration stated a cause of action on the theory that the publication by the defendant, author, constituted an unwarranted invasion of plaintiff's right of privacy such as would authorize the recovery of at least nominal damages. It was further held that malice was not required to be shown by plaintiff; that neither truth, nor the entire absence of malice or wrongful motive on the part of the defendant, constituted any defense; and that plaintiff, under the declaration, did not have to allege or prove any special or pecuniary damages. Hence the law of the cause of action has been heretofore established by this Court.

After the case was remanded, the defendants filed eighteen pleas, and then four amended pleas. The Court, after various rulings, held as sufficient Pleas 1, 3, 11, 14, 16, and Amended Plea 17.

The defendants filed sixty-two interrogatories, directed to the plaintiff. The plaintiff propounded seven interrogatories to the defendants. Amendments to some interrogatories were filed. Answers to certain of the interrogatories were made by the parties. Depositions were taken. Motions were made concerning some of the depositions and were ruled upon by the Court. This warfare by pleading ceased, and the case went to trial before a jury. Some forty witnesses, mostly for the defendant, testified in person or by deposition. The trial lasted eight days.

In view of the conclusion reached in this opinion, it will only be necessary to discuss Amended Plea 17 and some of the evidence offered by the defendant, and by the plaintiff.

The Amended 17th Plea of the defendant is as follows:

'The defendant author has for most of her mature life engaged in journalistic and literary work. Since 1928 the energies and attention of the defendant author have been continuously occupied in the production of books and stories based on the section of Florida in which defendant author lives and on the lives of the people among whom she lives, which books and stories became popular and were widely read throughout the United States and in many foreign countries. Among the books which plaintiff wrote was 'The Yearling,' originally published in April, 1938, which was more popular and more widely praised than any of the defendant author's previous literary works. It was successively published in ten American editions, including an edition issued by Book of the Month Club, a widely recognized organization engaged in the selection of the best book published in America each month and its circulation among numerous members of said organization in the United States and throughout the world. 'The Yearling' was appraised by a recognized American Litterary critic as 'a minor American Classic, not only as an important piece of regional literature, but as introducing one of the most appealing boy characters since 'Huckleberry Finn.' 'The Yearling' was also published in native language editions in England (2 editions), Spain, France, Finland, Norway (2 editions) Hungary, Poland, Italy, Sweden, Denmark, Germany, Greece and Holland and Japan. The defendant reasonably believed that the public would be interested in her autobiography covering the period of her life in the section of Florida about which the much greater portion of her writings have been done, and so undertook the writing of 'Cross Creek,' which was published in March, 1942, and was her first full length book published after 'The Yearling.' 'Cross Creek' was well received by the literary public and by readers of all classes in the United States and elsewhere. 'Cross Creek' was more extensively read in the United States and England than had been 'The Yearling.' The edition of 'Cross Creek' issued by said Book of the Month Club had a circulation more than three times as large as the circulation of 'The Yearling' by said organization. Both 'The Yearling' and 'Cross Creek' were published in the Armed Services Edition by the Council on Books in War Time, Inc., a non-profit organization of American publishers of general (trade) books, librarians and book-sellers for exclusive distribution to members of the American Armed Services, to supply them in small, convenient and economical form, the best books of the present and past. 'Cross Creek' had a slightly larger circulation in the Armed Services Edition than did 'The Yearling.' The comments on 'Cross Creek' and, particularly, that portion thereof relating to plaintiff quoted in said count, by literary critics and the public generally and members of the American Armed sevices throughout the world has been extensive and favorable. The quoted portions of said book 'Cross Creek' of which plaintiff in said count complains was of such a nature that its inclusion in said book should not offend or injure plaintiff or any person of ordinary feelings and intelligence, situated in like circumstances as plaintiff, so written about. The defendant author did not have reason to believe and did not apprehend that the publication of the portions of her said book quoted in said count could or would cause mental distress or injury to plaintiff. By reason whereof the defendants say that the things and people about which the defendant author wrote in said autobiography are matters of legitimate general public interest, and she was privileged to publish the matter complained of under Section 13 of the Declaration of Rights in the Constitution to the State of Florida.'

This Amended 17th Plea purports to allege facts showing that the matter published in 'Cross Creek' was of legitimate public and general interest, as a result to which the defendant was entitled to file a plea of privilege.

It is true that a person who, by his accomplishments, fame, or mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs, and his character, may be said to have become a public personage, and to that extent he thereby relinquishes at least a part of his right of privacy. Pavesich v. New England Mut. L. Ins. Co., 122 Ga. 190, 50 S.E. 68, 69 L.R.A. 101, 106 Am.St.Rep. 104, 2 Ann.Cas. 561. There may be a limited scrutiny of the 'private life' of any person who has achieved, or who has thrust upon him, the status of a 'public figure.' Sidis v. F. R. Publishing Corp., 2 Cir., 113 F.2d 806, 138 A.L.R. 15, certiorari denied in 311 U.S. 711, 61 S.Ct. 393, 85 L.Ed. 462.

As to who may be deemed a public figure, it has been laid down that any person who engages in a pursuit or occupation which calls for the approval or patronage of the public submits his private life to examination by those to whom he addresses his call, to the extent that may be necessary to determine whether it is wise and proper to accord him the approval or patronage which he seeks. One who engages in public affairs and public life to an extent which draws the public interest upon him may be deemed to have consented to the publication of his picture. Pavesich v. New England Mut. Life Ins. Co., supra, Annotation in 138 A.L.R. 59. The right of privacy was discussed by Warren and Brandeis in 4 Harvard L. Review, pp. 193 to 220, and at text page 21d, as follows:

'The right to privacy does not prohibit any publication of matter which is of public or general interest * * *. The design of the law must be to protect those persons with whose effairs the community has no legitimate concern, from being dragged into an undesirable and undesired publicity and to protect all persons whomsoever; their position or station, from having matters which they may properly prefer to keep private, made public agaisnt their will. It is the unwarranted invasion of individual privacy which is reprehended, and to be, so far as possible, prevented.'

In analyzing this Amended Plea 17, it does not appear to meet the test set forth by the authorities. The plea seeks to justify the publication of this matter concerning the plaintiff because of the fame of the author, the widespread distribution of the book, the general acceptance of the book by many people, both in America and abroad, and because of the great literary merit and popularity of the book. The plea does not allege that there was a legitimate general public interest in the plaintiff. The eminence of the defendant as an author and the excellence of her writings afford no basis for her privilege to destroy the right of privacy accorded by law to the plaintiff. Nor can the defendant create a public interest in an area or a community, and thereby justify the invasion of privacy of one who happens to live in that particular area or community.

We, therefore, hold that, because the plea fails to show that there was any preexisting legitimate general or public interest in the plaintiff, it fails to present a valid defense to the cause of action, either by way of a plea in bar or by confession and avoidance.

However, the real harm under the 17th Plea was the admission of a great mass of immaterial and prejudicial evidence. Counsel for the defendant contends that the honors which came to the defendant were demonstrative facts showing a wholesome and legitimate public interest in her, her home, and...