Gill v. Hearst Pub. Co.

• Citation: 253 P.2d 441,40 Cal.2d 224
• Court: California Supreme Court
• Decision Date: 17 February 1953
• Parties: GILL et ux. v. HEARST PUB. CO., Inc. et al. L. A. 22038.

Page 441

253 P.2d 441

40 Cal.2d 224

GILL et ux. v. HEARST PUB. CO., Inc. et al.

L. A. 22038.

Supreme Court of California, in Bank.

Feb. 17, 1953.

Shacknove & Goldman and Ben F. Goldman, Jr., Los Angeles, for appellants.

Flint & MacKay and Arch R. Tuthill, Los Angeles, for respondents.

Loeb & Loeb, Lawler, Felix & Hall, Los Angeles, Price, MacDonald & Knox, Oakland, John Hamlyn, Sacramento, Cosgrove, Cramer, Diether & Rindge and Binford & Binford, Los Angeles, amici curiae on behalf of respondents.

SPENCE, Justice.

As in the related case of Gill v. Curtis Publishing Co., 38 Cal.2d 273, 239 P.2d 630, plaintiffs, husband and wife, sought damages for an alleged invasion of their right of privacy. Defendant's demurrer to the amended complaint was sustained without leave to amend. From the judgment accordingly entered, plaintiffs appeal. It appears that plaintiffs properly challenge the correctness of the trial court's ruling insofar as it foreclosed their right to amend.

Plaintiffs' original complaint was predicated solely on the charge that in the October, 1947, issue of Harper's Bazaar, a magazine published and distributed by the corporate defendants, there appeared and unauthorized photograph of plaintiffs taken by defendants' employee while plaintiffs were seated in an affectionate pose at their place of business, a confectionery and ice cream concession in the Farmers' Market in Los Angeles. This photograph was used to illustrate an article entitled 'And So the World Goes Round,' a short commentary reaffirming 'the poet's conviction that the world could not revolve without love,' despite 'vulgarization' of the sentiment by some, and that ballads may still be written about everyday people in love. A demurrer to that original complaint was sustained on the ground that the statute of limitations had run, but leave to amend was granted. Plaintiffs do not question the propriety of that ruling. Code Civ.Proc. § 340, subd. 3.

Plaintiffs thereupon amended their complaint to allege that the same photograph was republished with defendants' consent in the May, 1949, issue of the Ladies' Home Joural, a monthly magazine published and distributed by the Curtis Publishing Company. The same publication was involved in Gill v. Curtis Publishing Co., supra, 38 Cal.2d 273, 239 P.2d 630. Specifically, it is here alleged that the 'picture' was republished with the 'knowledge, permission and consent' of defendants and that 'credit' for the publication was given to and required by defendants; that the published photograph depicts plaintiffs in an 'uncomplimentary' pose; that plaintiffs' right of privacy was thereby invaded and plaintiffs were subjected to humiliation and annoyance to their damage in the sum of $25,000. While the picture was used for illustration of an article entitled 'Love', see Gill v. Curtis Publishing Co., supra, 38 Cal.2d at page 275, 239 P.2d at page 632, plaintiffs did not allege that defendants also consented to the publication of the article. However, a copy of the picture, with the accompanying article, is attached as an exhibit to the amended complaint. Defendants maintain that since plaintiffs failed to make the direct allegation that defendants consented to the publication of the article, plaintiffs' alleged cause of action must be deemed to rest solely on the publication of the photograph without reference to the accompanying text or caption under the picture.

It is true that in their argument in opposing defendants' demurrer to their amended complaint, plaintiffs stressed the publication of the photograph alone as constituting a violation of their right of privacy, without regard to its use in connection with the article. However, as appears from its memorandum opinion in sustaining the demurrer without leave to amend, the trial court attached no significance to the matter of whether plaintiffs charged defendants with mere consent to publication of the photograph or included also consent to publication of the accompanying article. In either event the trial court was of the view that there had been no invasion of plaintiffs' right of privacy. Under such circumstances defendants may not successfully urge a waiver by plaintiffs or estoppel in limitation of the premise of their alleged damage claim. Regardless of plaintiffs' theory of liability, the ruling of the trial court would have been the same that a cause of action had not been stated. Therefore such authorities as Gordon v. Kifer, 26 Cal.App.2d 252, 255, 79 P.2d 164; Alberts v. American Casualty Co., 88 Cal.App.2d 891, 896, 200 P.2d 37; and 2 Cal.Jur. 844-852, are not in point.

As indicated in Gill v. Curtis Publishing Co., supra, 38 Cal.2d 273, 279, 239 P.2d 630, defendants would be liable in the event of their consent to publication of the photograph in connection with the article in the Ladies' Home Journal. Plaintiffs therefore maintain that any defect in the recitals of the amended complaint with reference to defendants' connection with the publication of the article as well as the photograph could be easily corrected by amendment. The incorporation of the article as an exhibit constitutes some basis for an inference that it may have been intended as an inseparable part of the photograph in presenting the extent of plaintiffs' complaint. Moreover, the allegation of consent is broad and it cannot be said that it necessarily negates a consent to publishing the article. The objection to plaintiffs' pleading thus goes to the matter of effecting a clarification of an uncertainty or an ambiguity. Manifestly, such defect is capable of being cured by amendment. Wennerholm v. Stanford University School of Medicine, 20 Cal.2d 713, 719, 128 P.2d 522, 141 A.L.R. 1358; Washer v. Bank of America Nat. Trust & Savings Ass'n, 21 Cal.2d 822, 833, 136 P.2d 297, 155 A.L.R. 1338. Under these circumstances, the trial court abused its discretion in sustaining defendants' demurrer without leave to amend. Wilk v. Vencill, 30 Cal.2d 104, 109, 180 P.2d 351.

The recognition of plaintiffs' right to proceed in the event of proper clarification involves the further observation that mere publication of the photograph standing alone does not constitute an actionable invasion of plaintiffs' right of privacy. The right 'to be let alone' and to be protected from undesired publicity is not absolute but must be balanced against the public interest in the dissemination of news and information consistent with the democratic processes under the constitutional guaranties of freedom of speech and of the press. U.S.Const. Amends. I, XIV; Cal.Const. art. I, sec. 9; 41 Am.Jur., Privacy, sec. 9, pp. 931-933; Nizer, The Right of Privacy, 39 Michigan Law Rev. 526, 528-529; Gill v. Curtis Publishing Co., supra, 38 Cal.2d 273, 277-278, 239 P.2d 630. The right of privacy may not be extended to prohibit any publication of matter which may be of public or general interest, but rather the 'general object in view is to protect the privacy of private life, and to whatever degree and in whatever connection a man's life has ceased to be private, before the publication under consideration has been made, to that extent the protection is to be withdrawn.' Brandeis-Warren Essay, 4 Harvard Law Rev., 193, 215; Metter v. Los Angeles Examiner, 35 Cal.App.2d 304, 312, 95 P.2d 491. Moreover the right of privacy is determined by the norm of the ordinary man; that is to say, the alleged objectionable publication must appear offensive in the light of 'ordinary sensibilities.' 41 Am.Jur., Privacy, sec. 12, p. 934. As has been said: '* * * liability exists only if the defendant's conduct was such that he should have realized that it would be offensive to persons of ordinary sensibilities. It is only where the intrusion has gone beyond the limits of decency that liability accrues. * * * It is only when the defendant should know that the plaintiff would be justified in feeling seriously hurt by the conduct that a cause of action exists.' Rest., Torts, Vol. 4, sec. 867, comment d, pp. 400-401; see, also, cases collected: Annos. 138 A.L.R. 22, 46; 168 A.L.R. 446, 452; 14 A.L.R.2d 750, 752. Whether there has been such an offensive invasion of privacy is 'to some extent one of law.' 41 Am.Jur., Privacy, sec. 12, p. 935; Schuyler v. Curtis, 147 N.Y. 434, 42 N.E. 22, 31 L.R.A. 286; Reed v. Real Detective Pub. Co., 63 Ariz. 294, 162 P.2d 133, 139; Cason v. Baskin, 155 Fal. 198, 20 So.2d 243, 251, 168 A.L.R. 430.

The picture allegedly was taken at plaintiffs' 'place of business,' a confectionery and ice cream concession in the Farmers' Market, Los Angeles. It shows plaintiffs, a young man and young woman, seated at a counter near a cash register, the young woman apparently in intent thought, with a notebook and pencil in her hands, which rest on the counter. Plaintiffs are dressed informally and are in a romantic pose, the young man having one arm about the young woman. There are at least five other persons plainly visible in the photograph in positions in close proximity to plaintiffs as the central figures. Apparently the picture has no particular news value but is designed to serve the function of entertainment as a matter of legitimate public interest. Rest., Torts, Vol. 4, sec. 867, comments c and d, pp. 399-401. However, the constitution guaranties of freedom of expression apply with equal force to the publication whether it be a news report or an entertainment feature, Lovell v. City of Griffn, 303 U.S. 444, 452, 58 S.Ct. 666, 82 L.Ed. 949; Winters v. New York, 333 U.S. 507, 510, 68 S.Ct. 665, 92 L.Ed. 840; United States v. Paramount Pictures, Inc., 334 U.S. 131, 166, 68 S.Ct. 915, 92 L.Ed. 1260, and defendants' liability accrues only in the event that it can be said that there has been a wrongful invasion of plaintiffs' right of privacy. Cf. Gill v. Curtis Publishing Co., supra, 38 Cal.2d 273, 280, 239 P.2d 630.

In considering the nature of the picture in question, it is significant that it...