Gill v. Curtis Pub. Co.

• Decision Date: 18 January 1952
• Citation: 38 Cal.2d 273,239 P.2d 630
• Court: California Supreme Court
• Parties: GILL et al. v. CURTIS PUB. CO. et al. L. A. 22037.

Page 630

239 P.2d 630

38 Cal.2d 273

GILL et al. v. CURTIS PUB. CO. et al.

L. A. 22037.

Supreme Court of California, in Bank.

Jan. 18, 1952.

Shacknove & Goldman, Los Angeles (Ben F. Goldman, Jr., Los Angeles, of counsel), for appellants.

Macdonald & Pettit and Thomas H. McGovern, all of Los Angeles, for respondents.

CARTER, Justice.

A judgment on the pleadings for defendants, Curtis Publishing Company and Curtis Circulation Company, was granted pursuant to defendants' motion. The case is reviewed, therefore, the same as would be a judgment of dismissal entered following the sustaining of a general demurrer, and the allegations in plaintiffs' complaint must be taken as true, and so taken the question is whether a cause of action has been stated. Rannard v. Lockheed Aircraft Corp., 26 Cal.2d 149, 157, P.2d 1; Seeger v. Odell, 18 Cal.2d 409, 115 P.2d 997, 136 A.L.R. 1291; 21 Cal.Jur. 234, et seq.

Plaintiffs are husband and wife. Defendants publish, circulate and sell for profit a monthly magazine named Ladies Home Journal. Cartier-Bresson, a photographer, and Dahl, a writer, are in the employ of defendants.

Plaintiffs own and operate a confectionery and ice cream concession in the Farmers' Market in Los Angeles. They have a reputation for industry, integrity, decency and morality. Cartier-Bresson, in the course of his employment, photographed plaintiffs at their place of business without their knowledge or consent. The photograph depicts them apparently seated on stools side by side at the patron's side of the counter at their concession; plaintiff, Mr. Gill, has his arm around his wife and is leaning forward with his cheek against hers. The picture was published by defendants in their May, 1949, issue of the Ladies Home Journal, in connection with an article entitled 'Love' written by Dahl in the course of his employment. Under the picture appears the caption 'Publicized as glamorous, desirable, 'love at first sight' is a bad risk.' The article is a somewhat philosophical and sociological discussion of love between the opposite sexes, and its relation to divorce. Love is classified generally on the basis of the extent it is founded upon 'sex attraction' or 'affection' and 'respect.' One of the classifications is called love at first sight, which is founded upon 100% sex attraction, the kind which the photograph is captioned to portray. That kind of love is called the 'wrong' one, not lasting and will be followed by divorce. In this connection, plaintiffs allege that the picture depicts them 'in such a manner as to indicate said plaintiffs are loose, dissolute and immoral persons engaged in the so-called 'wrong kind of love' * * *.'

Defendants knew, or should have known, it is further asserted, plaintiffs were happily married and had a high moral reputation, but nevertheless, in a malicious disregard of their rights and feelings, published and sold the magazine with the article and photograph; that such publication and distribution caused plaintiffs to be held up to public 'scorn, ridicule, hatred, contempt and obloquy and did rob and deprive plaintiffs of the benefits of public confidence, respect and esteem and injure said plaintiffs in their business and social contacts and associations and in their reputations and health' to their damage in the sum of $200,000.

Recognition has been given of a right of privacy, independent of the common rights of property, contract, reputation and physical integrity, generally described as 'the right to live one's life in seclusion, without being subjected to unwaranted and undesired publicity. In short, it is the right to be let alone.' Melvin v. Reid, 112 Cal.App. 285, 289, 297 P. 91, 92. Remedies have been afforded for the protection of that right. See Melvin v. Reid, supra; Cohen v. Marx, 94 Cal.App.2d 704, 211 P.2d 320; Metter v. Los Angeles Examiner, 35 Cal.App.2d 304, 95 P.2d 491; Kerby v. Hal Roach Studios, 53 Cal.App.2d 207, 127 P.2d 577; Reed v. Real Detective Pub. Co., 63 Ariz. 294, 162 P.2d 133; Smith v. Doss, 251 Ala. 250, 37 So.2d 118; Cason v. Baskin, 155 Fla. 198, 20 So.2d 243, 168 A.L.R. 430; Corliss v. E. W. Walker Co., C.C., 64 F. 280, 31 .r.a./ 283; Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68, 69 .r.a./ 101; Bazemore v. Savannah Hospital, 171 Ga. 257, 155 S.E. 194; Goodyear Tire & Rubber Co. v. Vandergriff, 52 Ga.App. 662, 184 S.E. 452; McDaniel v. Atlanta Coca-Cola Bottling Co., 60 Ga.App. 92, 2 S.E.2d 810, 811; Sikes v. Foster, 74 Ga.App. 350, 39 S.E.2d 585; Sidis v. F-R Pub. Corp., 2 Cir., 113 F.2d 806, 138 A.L.R. 15, dealing with California, Georgia, Kansas, Kentucky and Missouri law; Paramount Pictures v. Leader Press, Inc., D.C., 24 F.Supp. 1004; State ex rel. Mavity v. Tyndall, 224 Ind. 364, 66 N.E.2d 755; Kunz v. Allen, 102 Kan. 883, 172 P. 532, .r.a./1918D, 1151; Jones v. Herald Post Co., 230 Ky. 227, 18 S.W.,2d 972; Itzkovich v. Whitaker, 115 La. 479, 39 So. 499, 1 L.R.A.,N.S., 1147; Pallas v. Crowley, Milner & Co., 322 Mich. 411, 33 N.W.2d 911; Munden v. Harris, 153 Mo.App. 652, 134 S.W. 1076; Barber v. Time, Inc., 348 Mo. 1199, 159 S.W.2d 291; Flake v. Greensboro News Co., 212 N.C. 780, 195 S.E. 55; Norman v. City of Las Vegas, 64 Nev. 38, 177 P.2d 442; McGovern v. Van Riper, 137 N.J.Eq. 24, 43 A.2d 514; Bednarik v. Bednarik, 16 A.2d 80, 18 N.J.Misc. 633; Hinish v. Meier & Frank Co., 166 Ore. 482, 113 P.2d 438, 138 A.L.R. 1; Holloman v. Life Ins. Co. of Virginia, 192 S.C. 454, 7 S.E.2d 169, 127 A.L.R. 110; Rest., Torts, § 867; 37 Va.L.Rev. 335; 22 So.Cal.L.Rev. 320; 48 Col.L.Rev. 713; 4 Harv.L.Rev. 193; 41 Am.Jur., Privacy § 5; 138 A.L.R. 22; 168 A.L.R. 446; 14 A.L.R.2d 750. There are more states which have recognized such a right than have not, and the former represent the modern trend. See cases collected 138 A.L.R. 22; 168 A.L.R. 446; 14 A.L.R.2d 750; 40 Col.L.Rev. 713. The arguments advanced by the authorities pro and con are summarized: 'One of the principal arguments advanced in support of the doctrine of privacy by its original exponents is that the increased complexity and intensity of modern civilization and the development of man's spiritual sensibilities have rendered man more sensitive to publicity and have increased his need of privacy, while the great technological improvements in the means of communication have more and more subjected the intimacies of his private life to exploitation by those who pander to commercialism and to prurient and idle curiosity. A legally enforceable right of privacy is deemed to be a proper protection against this type of encroachment upon the personality of the individual. While the early law gave redress only for physical interference with life and property, it is now recognized that man's spiritual nature also needs protection, and that his feelings as well as his limbs should be inviolate. In the formative period of the common law, before the day of newspapers, radio, and photography, when life was simpler and human relations more direct, the individual could himself adequately protect his privacy. Today this would be impossible, and to cast the individual upon his own resources in this regard would only result in a relapse into a system of private vengeance and violence which our civilization has outgrown. Freedom of speech and freedom of the press have been urged as a ground for denying the existence of the right of privacy. The right of privacy does undoubtedly infringe upon absolute freedom of speech and of the press, and it also clashes with the interest of the public in having a free dissemination of news and information. These paramount public interests must be taken into account in placing the necessary limitations upon the right of privacy. But if this right of the individual is not without qualifications, neither is freedom of speech and of the press unlimited. The latter privilege is subject to the qualification that it shall not be so exercised as to abuse the rights of individuals. Accordingly, it is held by courts recognizing the right of privacy that the constitutional guaranties of freedom of speech and of the press do not warrant the publication of matter constituting an invasion of the right of privacy any more than they give the right to defame a person. The absence of precedent affirming the existence of the right of privacy has been stressed by the courts denying or doubting the existence of such a right. This was one of the principal grounds of the first decision repudiating the doctrine of privacy. But the courts adopting the other view take the position that the lack of specific precedent is not decisive. It has been objected that a recognition of the right of privacy would open up a vast field of litigation, some of it bordering on the absurd. But courts recognizing the right deny the validity of this objection. According to the latter view, the fact that a recognition of the right would involve many cases near the border line, and would present perplexing questions, is not a good ground for denying the existence of such right or refusing to give relief in a case where it is clearly shown that a legal wrong has been done. While it is clear that when dealing with injuries to feelings alone it is difficult to fix definite and practical limits separating that which is merely a trivial annoyance to a particular individual from that of which the law will take cognizance, the difficulty is not insurmountable. The supposed principle of law that remedies are not afforded for mental pain or distress or injuries to the sensibilities, where there is no other injury involved, has been asserted as an argument against the right of privacy.' 41 Am.Jur., Privacy § 9.

We believe the reasons in favor of the right are persuasive, especially in the light of the declaration by this court that 'concepts of the sanctity of personal rights are specifically protected by the Constitution, both state and federal, and the courts have properly given them a...