Henry v. Cherry & Webb

• Decision Date: 22 June 1909
• Citation: 30 R.I. 13,73 A. 97
• Court: Rhode Island Supreme Court
• Parties: HENRY v. CHERRY & WEBB.

73 A. 97

30 R.I. 13

HENRY

v. CHERRY & WEBB.

Supreme Court of Rhode Island.

June 22, 1909.

Case Certified from Superior Court, Providence and Bristol Counties; Charles C. Mumford, Judge.

Action by James N. Henry against Cherry & Webb. A demurrer having been filed to the declaration, the case was certified to the Supreme Court for advice. Questions answered, and case returned to superior court for further proceedings.

Bassett & Raymond (R. W. Richmond, of counsel), for plaintiff.

Edwards & Angell (Francis B. Keeney and Seeber Edwards, of counsel), for defendants.

DUBOIS, C. J. This is an action of trespass vl et armis, brought by the plaintiff in the superior court. The material portion of the plaintiff's declaration, in two counts, reads as follows:

"First Count. For that at the time of the committing of the grievances hereinafter complained of the defendants were engaged in a general mercantile business of buying and selling dry goods, ladies' garments, etc., in said city of Providence, and extensively advertised their wares and merchandise in the public newspapers published in said Providence; that on the 10th day of April, A. D. 1908, the defendants, with force and arms, invaded the plaintiff's right of privacy in this, to wit, that they published in connection with their aforesaid advertisements a likeness or picture of the plaintiff in the issue of the Providence Evening Bulletin of that date, which said paper is one of the public newspapers in said Providence and has a large and extensive circulation throughout said city and state; that said picture or likeness of the plaintiff was easily recognized by his friends and acquaintances; that the plaintiff was pictured as seated in an automobile, apparently driving the same, and also in said picture were several other persons, represented as sitting in the rear seat of said automobile; that the said picture or likeness appeared in a prominent place in said newspaper and was likely to and did attract much attention. Below the picture, in heavy black type, were the words 'Only $10.50,' and below, on the next line, in heavy display type, were the words, 'The Auto Coats Worn by Above Autoists are Water-Proof, Made of Fine Quality Silk Mohair—10.50— Four Colors.' And the plaintiff avers that he is not a public character and has in no way waived his right of privacy, and that the defendants then and there, to wit, on said 10th day of April, A. D. 1908, without the knowledge and consent of the plaintiff, and knowing that they had no authority so to do, caused said likeness or picture of the plaintiff to be published in said Evening Bulletin, which said publication tended to and did make the plaintiff the object of much scoff, ridicule, and public comment, contrary to the plaintiff's right of privacy in the premises so far as the acts of the defendants were concerned. And the plaintiff avers that the said publication was a trespass upon his said right of privacy, and as a result of said Invasion of his right of privacy by the defendants as aforesaid he has been made the object of much ridicule, scoff, and gibes by those of his friends and acquaintances who have recognized his likeness in said publication, and has suffered great mental anguish, all of which the defendants did against the peace and to the damage of the plaintiff, as he says, one thousand dollars, as laid in his writ dated the 21st day of April, A. D. 1908."

"Second Count. For that, at said Providence, on the 10th day of April, A. D. 1908, the defendants then and there published in the Evening Bulletin, a public newspaper printed in said Providence and having a large circulation throughout said city and state, a picture or likeness of the plaintiff that would be and was recognized by the friends and acquaintances of the plaintiff; that in such picture the plaintiff was represented as apparently driving an automobile, in which were seated several other persons; that beneath said picture, in heavy black type, were the words, 'Only $10.50,' and below, on the next line, in heavy display type, were the words, 'The Auto Coats Worn by Above Autoists are Water-Proof, Made of Fine Quality Silk Mohair—$10.—in Four Colors'; that said picture was 'featured' in a prominent place in said newspaper, and tended to and did attract much attention; that said picture or likeness of the plaintiff, taken in connection with the words inserted beneath it (which said words are above referred to in this count), tended to and did expose the plaintiff to unwarranted humiliation and to the scoff, jeers, and gibes of his friends and acquaintances who recognized the said likeness or picture of the plaintiff. And the plaintiff avers that said publication of his said likeness or picture and of the words of the advertisement in connection therewith, hereinbefore referred to, was without his knowledge or consent, and was wholly unwarranted on the part of said defendants, and that by reason of said unwarranted publication of his said likeness or picture as aforesaid he has been subjected to great humiliation and held up to public ridicule and has suffered mental anguish therefrom, to the damage of the plaintiff, as he says, $1,000, as laid in his writ dated the 21st day of April, A. D. 1908."

To this declaration the defendants demurred upon the following grounds: "First, the form of action should be trespass on the case, and not trespass, as declared upon"—and to the first count for the reasons following: "First, said count sets forth no cause of action; second, said count alleges no right for the invasion of which the plaintiff is entitled to recover damages against the defendants; third, the law does not regard the right of privacy as a right for the invasion of which a person is entitled to recover damages"—and to the second count for the following causes: "First, said count is indefinite and uncertain in its statement of the cause of action, and it is impossible therefrom to determine whether the plaintiff relies upon an action for alleged libel, or for an alleged invasion of his right of privacy; second, said count states no cause of action against the defendants; third, if the plaintiff relies upon an action for libel, the alleged publication is not defamatory; fourth, if the plaintiff relies upon an action for libel, the alleged publication is not libelous per se, and said count contains no averment of special damages; fifth, said count alleges no right for the invasion of which by the defendants the plaintiff is entitled to recover damages against the defendants."

Whereupon a justice of the superior court entered the following order of certification: "This cause being before the court for hearing upon the defendant's demurrer to the plaintiff's declaration, and thereupon certain questions of law arising which, in the opinion of the court, are of such doubt and importance and so affect the merits of the controversy that they ought to be determined by the Supreme Court before further proceedings, it is ordered that the following questions be certified to the Supreme Court under the provisions of section 478 of the Court and Practice Act, namely: First. Has a person at common law a right designated as a 'right of privacy,' for the invasion of which an action for damages lies? Second. Is the unwarranted publication of a person's photograph for advertising purposes actionable at common law, where the only injury alleged is that of mental suffering?"

The provisions of Court and Practice Act § 478, under which the questions have been certified for our determination, are as follows: "Sec. 478. If in any proceeding, civil or criminal, in the superior court or in any district court, prior to the trial thereof on its merits, any question of law shall arise which in the opinion of the court is of such doubt and importance, and so affects the merits of the controversy that it ought to be determined by the Supreme Court before further proceedings, or if a motion in arrest of judgment be made, the court in which the cause is pending may certify such question or motion to the Supreme Court for that purpose and stay all further proceeduntil the question is heard and determined."

Treating the first question literally, it might easily be answered in the negative for we are unable to find any opinion, decision, or dictum which determines that such a right was so designated at common law; but we are unwilling to dismiss so important and interesting a question upon such a technical ground. We prefer to treat both of the questions as broadly as possible within the limits of the case in which they have arisen. Perhaps the questions may as well be considered as if they read: Has a person a right of privacy, for the invasion of which an action for damages lies at common law? Is the unwarranted publication of a person's photograph for advertising purposes an invasion of such right? and, Can an action for such an invasion be maintained at common law, where the only injury alleged is that of mental suffering? It is apparent that, if the first question should be answered in the negative, no necessity would exist for answering the others, and that, if the first should be answered affirmatively and the second in the negative, it would then become unnecessary to answer the third.

The consideration of the case may be simplified by eliminating the second count of the declaration, which, as claimed by the plaintiff, charges the defendants with libel. "A libel is a malicious defamation expressed in printing or writing, or by signs, pictures, etc., tending to injure the reputation of another, and thereby exposing such person to public hatred, contempt, or ridicule. And an action on the case is maintainable against any person who falsely and maliciously publishes any libel against another." 2 Selwyn's Nisi Prius (7th Am. Ed.) *1045. It is perfectly clear, upon inspecting the second count, that nothing therein contained charges the defendants with...