Hull v. Curtis Pub. Co.

• Decision Date: 03 October 1956
• Citation: 125 A.2d 644,182 Pa.Super. 86
• Parties: Kenneth HULL, Howard Lange and Joseph Hancock v. The CURTIS PUBLISHING COMPANY.
• Court: Pennsylvania Superior Court

Page 644

125 A.2d 644

182 Pa.Super. 86

Kenneth HULL, Howard Lange and Joseph Hancock v. The CURTIS PUBLISHING COMPANY.

Superior Court of Pennsylvania.

Oct. 3, 1956.

Morris J. Winokur, Philadelphia, for appellants.

Wilbur H. Haines, Jr., Philip H. Strubing, Pepper, Bodine, Frick, Sheetz & Hamilton, Philadelphia, for appellee.

Before HIRT, Acting P. J., and GUNTHER, WRIGHT, WOODSIDE, ERVIN and CARR, JJ.

WOODSIDE, Judge.

This is an appeal from the order and judgment of the lower court granting the defendant's motion for judgment non obstante veredicto after the jury found for the plaintiffs in an action in trespass for invasion of the right of privacy. The lower court held that the action was barred by the statute of limitations.

The three plaintiffs are Philadelphia policemen who claim the defendant invaded their right of privacy by publishing a photograph of them in the issue of The Saturday Evening Post dated January 31, 1948.

The photograph about which plaintiffs complain had previously been published in a daily newspaper. The circumstances leading to its ultimate publication in the 'Post' were as follows:

In November of 1945 a robbery suspect was caught by two of the plaintiff police officers after a chase and brought into the police station. There a newspaper photographer took a series of three pictures which were published the following day in the Philadelphia Inquirer. The first of these pictures shows the suspect standing between two of the plaintiffs who are holding him by the wrists. The third plaintiff is looking over the suspect's shoulder toward the camera. The second photograph shows the suspect lunging forward with his head toward the floor only about two feet from it. All three of the uniformed plaintiffs are grabbing at him. Two of the plaintiffs testified that the suspect did not want his picture taken, but that they thought when he lunged forward that he was trying to break away from them. The third picture shows a person in civilian clothes identified by the plaintiffs as a detective, firmly holding up the suspect's head by the chin while two of the plaintiffs hold his arms. The third plaintiff is standing back of the suspect looking on. The pictures were published with the caption: 'James P. Sweeney, discharged vet suspect in holdup, fights police at 65th St. and Woodland Ave. station after chase and arrest.' An article describing the holdup and how two of the plaintiffs chased and captured the suspect accompanied the pictures in the newspaper.

The second of these pictures appeared in an article published by The Saturday Evening Post nearly three years later. The article was entitled 'Crime Was My Business' and was an account of the experiences of a former California police chief. It did not explain or have anything to do with the photograph. The caption under the photograph was 'One of the compensations in a policeman's life is the thrill he gets out of walking into a potentially dangerous situation and knowing that it is his presence there that brings order. 'If I had to do it all over again,' says Mr. Powers, 'I'd still be a cop."

The defendant purchased the picture from the Acme News Agency in New York. With it the agency sent an explanation of the circumstances surrounding the taking of the photograph and the names of the plaintiffs. The photograph was selected by members of the defendant's staff from 76 different pictures obtained from several news agencies. The particular photograph was chosen because defendant felt that it most effectively illustrated the article with which it was published.

None of the plaintiffs gave permission or consent to its publication. The defendant made no attempt to obtain permission from any of the plaintiffs although it could have easily located them had it made an effort to do so.

The plaintiffs testified that the picture published in the Post was called to their attention by people who remarked that it portrayed them as bullies beating a helpless prisoner. They testified that on the pavement in front of the home of one of them there appeared a drawing showing an officer beating a person with a club, and that for a matter of several months after the publication they all received anonymous phone calls and mail characterizing them as bullies.

The right of privacy has not been clearly defined.

It has been variously referred to as "the right to live one's life in seclusion, without being subjected to unwarranted and undesired publicity. In short it is the right to be let alone." Kerby v. Hal Roach Studios, Inc., 1942, 53 Cal. App.2d 207, 127 P.2d 577, 579; and as "the right of a person to be free from unwarranted publicity' or 'unwarranted approbation or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities in such manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities." Smith v. Doss, 1948, 251 Ala. 250, 37 So.2d 118, 120, 121.

The right of privacy does not ordinarily apply to 'public figures', Sidis v. F-R Publishing Corporation, 2 Cir., 1940, 113 F.2d 806; Garner v. Triangle Publications, Inc., D.C., 1951, 97 F.Supp. 546, 549. 'Generally, the right does not exist with respect to the dissemination of news and news events or educational information'. 77 C.J.S., Right of Privacy, § 2, page 399.

The right of privacy is a recent development arising from the use, and abuse, of the relatively recent inventions of photography, radio, television and the growth of so-called 'yellow journalism'. ¹

The concept of a legal action for the invasion of the right of privacy was lying dormant in the legal minds of this country until Justice Louis D. Brandeis, while in his youth, collaborated with Professor Samuel D. Warren in writing an article published in the Harvard Law Review of December 15, 1890, Vol. 4, p. 193. So cogent was the logic of this article that it not only convinced legal minds of the advisability of having such an action, but also moved numerous courts to acknowledge the right and declare its existence. Whether such declaration was 'judicial legislation', or whether it was based upon precedents founded upon related ancient principles is debatable. ²

Most courts which considered the subject apparently felt required to accept the legal principle without the necessity of action by the legislature.

However, the first court to pass upon the question, the New York Court of Appeals, by a vote of four to three rejected the concept of privacy as a legal right. Robertson v. Rochester Folding Box Co., 1902, 171 N.Y. 538, 64 N.E. 442, 59 L.R.A. 478. The legislature of that state later passed an act creating the right.

Georgia, through its highest court, recognized the right in 1904 and since then a number of other states have done likewise. For a list of courts which recognized the right, see Peay v. Curtis Publishing Co., D.C., 1948, 78 F.Supp. 305, 307, 308 and 'Interstate Publications', by Prof. William L. Prosser, 51 Mich.Law Review 988, 989 (1953).

The legal right of privacy is recognized in the Restatement of the Law of Torts § 867 in the following words: 'A person who unreasonably and seriously interferes with another's interest in not having his affairs known to others or his likeness exhibited to the public is liable to the other.'

There are no appellate court decisions in Pennsylvania recognizing the existence of the right of privacy. ³

First reference to it in the appellate courts of this state was in a concurring opinion by Justice, later Chief Justice, Maxey in Waring v. WDAS Broadcasting Station, Inc., 1937, 327 Pa. 433, 456, 194 A. 631. The principle was subsequently recognized in three cases in the Common Pleas Courts of Philadelphia County. In Harlow v. Buno Co., Inc., 1939, 36 Pa. Dist. & Co. R. 101 the right of such action was recognized, but recovery denied under the facts, because the invasion was not intentional and was discontinued as soon as the defendant learned its supposed authority to publish the plaintiff's picture was not genuine. In Clayman v. Bernstein, 1940, 38 Pa. Dist. & Co. R. 543 the right was again recognized in an action to enjoin the use of a photograph taken by a doctor of a patient without her consent. In Lisowski v. Jaskiewicz, 1951, 76 Pa. Dist. & Co. R. 79 the right was again recognized but preliminary objections were sustained on the ground that the complaint failed to show a violation of the right of privacy.

In Schnabel v. Meredith, 1954, 378 Pa. 609, 107 A.2d 860, 863, Justice Jones stated: 'Assuming, without deciding, that [the right of privacy] does exist in Pennsylvania, the appellant has not brought himself within the operation of the rules governing the right of privacy where such right has been judicially recognized.'

Judge Goodrich, of the Court of Appeals of the Third Circuit, held in Leverton v. Curtis Publishing Co., 1951, 192 F.2d 974, 975, that the publication of a picture by a magazine was an actionable invasion of plaintiff's right of privacy under the laws of the Commonwealth of Pennsylvania. He recognized that 'the outlines of the right and the privilege to invade it are still dimly marked' and that the court was required to 'fashion our decision 'from the materials at hand' without the benefit of an authoritative decision on the exact point involved in Pennsylvania or elsewhere.'

The Uniform Single Publication Act was adopted in Pennsylvania August 21, 1953, P.L. 1242, 12 P.S. § 2090.1. It provides, inter alia, that 'No person shall have more than one cause of action for damages or libel, or slander, or invasion of privacy, or any other tort founded upon any single publication, or exhibition, or utterance, such as any one edition of newspaper, or book, or magazine, or any one presentation to an audience, or any one broadcast over radio or television, or any one exhibition of a...