Cason v. Baskin

• Citation: 20 So.2d 243,155 Fla. 198
• Parties: CASON v. BASKIN et al.
• Decision Date: 24 November 1944
• Court: United States State Supreme Court of Florida

20 So.2d 243

155 Fla. 198

CASON v. BASKIN et al.

Florida Supreme Court

November 24, 1944

Rehearing Denied Jan. 16, 1945.

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

J. V. Walton and Kate L. Walton, both of Palatka, for appellant.

Crawford & May of Jacksonville, for appellee.

BROWN, Justice.

Plaintiff below appellant here, Miss Zelma Cason, a resident and native of Island Grove in Alachua County, Florida, brought suit in the Circuit Court of Alachua County in February 1943, against the defendants, Mrs. Marjorie Kinnan Baskin, 'sometimes known as Marjorie Kinnan Rawlings,' and her husband, Norton Baskin, also residents of Alachua County, in an action sounding in tort for damages. The husband was merely a formal party defendant, a formality later rendered unnecessary by the adoption of Chapter 21932, Laws of 1943, F.S.A. §§ 708.08 to 708.10. The declaration consisted of four counts, of which the first two were based on an alleged invasion of plaintiff's right of privacy. The trial Court sustained demurrers to each of the four counts and plaintiff declining to plead further, judgment for defendant was entered and plaintiff took this appeal.

We find no error in the Court's ruling on the first, third and fourth counts.

The first and the main question presented here is whether an action may be maintained in this State for an invasion of the right of privacy. This question, which has been very ably and thoroughly briefed by counsel for the respective parties, will be discussed presently.

The first count, which is quite similar to the second, failed to state that the publication, which was alleged to have constituted an invasion of privacy, was made without the knowledge and consent of the plaintiff. This was an essential allegation. Appellant argues that plaintiff's lack of consent to the publication can be implied from the allegations of the count as a whole. We think not. Furthermore, such an essential allegation should not be left to implication or conjecture. It should be expressly made, and was so made in the second count, which reads as follows:

'And in a Second Count, for that whereas, plaintiff, before and at the time of the committing of the several grievances hereinafter mentioned, lived a quiet and private life, free from the prying curiosity which accompanies either fame or notoriety, withdrawn from the public gaze, free from the insatiable interest of the great mass of people in those whose conduct or behavior attracts or warrants general public notice or interest; and, whereas, plaintiff has ever shunned and avoided notoriety and publicity, has ever cherished and held as precious the privacy of her personal life and of her acts and sayings in all her social relations; and, whereas, also plaintiff has never exhibited or sought to exploit her own name or personality for money, profit or commercial gain; yet, plaintiff alleges that the defendant, Marjorie Kinnan Baskin, sometimes known as Marjorie Kinnan Rawlings, well knowing the premises aforesaid but contriving and wrongfully and maliciously intending to injure and aggrieve plaintiff and to bring her into public notoriety and to destroy the comfort of her life and the peace and tranquility of her mind, and to thrust upon plaintiff, unsought, unwarranted and undesired publicity and notoriety, utterly obnoxious to plaintiff, and to annihilate and destroy the seclusion of plaintiff's private life, and to exploit plaintiff's name and personality, did, in or about the month of March, in the year 1942, and at many and divers times within two years prior to the bringing of this suit, wilfully and maliciously publish and cause and procure to be published, of and concerning the plaintiff, to the public at large in Alachua County, Florida, and throughout the State of Florida and the United States, what purports to be a biographical sketch, description and partial life history of the plaintiff, in which the name, form, words and actions of plaintiff are reproduced by graphic descriptions, colored but, withal, creating a pen protrait of plaintiff, recognizable to plaintiff, and to friends and acquaintances of plaintiff, and which clearly identifies the plaintiff in the public mind; that such use of plaintiff's name, biographical sketch, life history and description appeared in and formed a component part of a book entitled 'Cross Creek', written, published and caused to be published and offered for sale to the public at large by the defendant, as and under the name of Marjorie Kinnan Rawlings; that the said book was widely sold to and read by the public in Alachua County, Florida, and throughout all Florida and the United States, and was read by plaintiff and by the friends and acquaintances of plaintiff; that the sale of said book was and is to the great commercial gain and financial profit of said defendant; that in and as a component part of said book the said defendant did publish, cause and procure to be published, of and concerning the plaintiff the matter set forth in haec verba in the first count of this declaration, beginning with the twenty-second line on page three, and ending with the fifth line on page six thereof, and to which matter plaintiff makes reference and adopts for this second count as if here set forth in full to the like tenor. All of which was unwarranted and all without the foreknowledge, consent or acquiescence of plaintiff and against plaintiff's will.'

'Whereby and by means of the committing of which said grievances by the said defendant, the plaintiff was and is greatly injured in this, to-wit: that plaintiff's personality has been violated by being exposed, exhibited and sold to the public; that plaintiff's name has been cheapened and made notorious; that plaintiff has been subjected to the contempt, ridicule and inquisitive notice of the general public to the injury of her personality and to the outrage of the finer sentiments of her nature and to the humiliation of her selfrespect; that plaintiff's peace of mind has been disturbed and destroyed; that plaintiff's privacy has been invaded and her right to privacy violated; that plaintiff, herself, a private person and having an individual personality, has thus been made notorious and conspicuous to the public and has been singled out for and identified to the public notice and attention, which is utterly obnoxious to plaintiff; and plaintiff has been caused and has suffered great mental pain and personal injury by reason of the aforesaid grievance to the damage of plaintiff; and plaintiff claims One Hundred Thousand Dollars ($100,000),'

It will have been observed that the second count adopts and makes a part thereof that portion of the first count setting forth the published matter, forming a part of the book 'Cross Creek', which was contained in the first count and which, as set forth in said first count, reads as follows:

'For learning a new territory and people as quickly as possible, I recommend taking the census on horseback. In 1930 my friend Zelma from the village was commissioned to take the census in the back-country sections of Alachua County. Zelma is an ageless spinster resembling an angry and efficient canary. She manages her orange grove and as much of the village and county as needs management or will submit to it. I cannot decide whether she should have been a man or a mother. She combines the more violent charasteristics of both and those who ask for or accept her manifold ministrations think nothing of being cursed loudly at the very instant of being tenderly fed, clothed, nursed or guided through their troubles. She was the logical census taker for our district. She knew all the inhabitants, black and white, and every road and trail leading to their houses. None of the places could be reached by a main road, and travelling by automobile would leave most of the noses uncounted. She borrowed two horses from the manager of the Maxcey packing house, and on a bright fall morning we set out together. * * * 'It's a _____ blessing for us not many Yankees have seen country like this, or they'd move in on us worse than Sherman,' Zelma said, and reined in her horse to dismount in front of the first cabin. We finished the scanty counting along Orange Lake and cut west toward the River Styx. * * * We came out at last on a turpentine still and here the population was black and dense. So many little Pickaninnies ran away from the cabins as the strange horses approached, that it was a long job gathering them all in to be counted, and their fancy names and vaguely estimated ages written down on the papers. Zelma knew all the older Negroes and many of the younger ones. She joked with some and sympathized with others, recommended cures for this and that, and promised to send medicine to one, quilt scraps to another, and a pound of little conch pea seed to yet another. She chided one lean brown girl for her immense brood, fathers unknown.

"I know it's too many, Miss Zelma', the girl agreed.

'I sho' got to git me a remedy.'

'By the time we had finished the Quarters, dusk was falling. Zelma knew a short cut back to the Creek. It took us by Burnt Island, and she told me fabulous tales of it in the growing darkness. There was believed to be the grandfather of all rattlesnakes living there. Only glimpses had been had of him, but several reported to have seen his shed skin, and all agreed that it was nine feet long. The 'shed' stretches, and the snake could reasonably and conceivably have been seven feet in length. There were wild boars on Burnt Island, savage long-tusked and dangerous. The place was also a hideout for criminals who preferred the great rattler and the wild boars to the arm of the law. I was not happy when Zelma announced profanely that...