Kelly v. Johnson Pub. Co.

• Decision Date: 22 May 1958
• Citation: 160 Cal.App.2d 718,325 P.2d 659
• Parties: Margarette Thompson KELLY, Cleo Thompson Watts and Charlotte Thompson Martin, Plaintiffs and Appellants, v. JOHNSON PUBLISHING COMPANY, Incorporated,a corporation, Doe I, Doe II, Doe Corporation I, Doe Corporation II, John H. Johnson, Defendants, Johnson Publishing Company, Incorporated, Defendant and Respondent. Civ. 22585.
• Court: California Court of Appeals Court of Appeals

Page 659

325 P.2d 659

160 Cal.App.2d 718

Margarette Thompson KELLY, Cleo Thompson Watts and Charlotte Thompson Martin, Plaintiffs and Appellants, v. JOHNSON PUBLISHING COMPANY, Incorporated,a corporation, Doe I, Doe II, Doe Corporation I, Doe Corporation II, John H. Johnson, Defendants Johnson Publishing Company, Incorporated, Defendant and Respondent.

Civ. 22585.

District Court of Appeal, Second District, Division 3, California.

May 22, 1958.

Wilson, Carter, Flournoy & Matthews, and Rafus J. Carter, Los Angeles, for appellants.

Loeb & Loeb, Los Angeles, Allen E. Susman, Beverly Hills, and Sanford M. Ehrmann, Los Angeles, for respondent.

VALLEE, Justice.

Appeal by plaintiffs from a judgment entered on an order sustaining defendant's general demurrer to the complaint without leave to amend. The question is: Does the complaint state facts sufficient to constitute a cause of action for wrongful invasion of the right of privacy or for libel?

The complaint alleges:

1. Defendant is the owner and publisher of 'Ebony,' a magazine circulated in the County of Los Angeles and throughout the world.

2. Plaintiffs are the surviving sisters and only heirs at law of Cecil Lewis Thompson who died in Los Angeles on April 11, 1946.

3. At the time of his death and for many years prior thereto Thompson had received and enjoyed international recognition and acclaim as a fighter and boxer in the prize ring, and had attained a status as a boxing champion under the name 'Jack Thompson.'

4. Thompson was of good reputation and character, and had and enjoyed a good general reputation among the members of the community in which he lived and performed.

5. Thompson was the sole brother of plaintiffs and his memory is held by plaintiffs with deep reverence and respect.

6. On October 1, 1956 in Los Angeles city and county defendant, for the purpose of exploiting its publishing business and of increasing its gains, did invade plaintiffs' 'right of privacy by wilfully and maliciously publishing and using in said magazine the following libelous matter in the following manner of and concerning the said Cecil Lewis Thompson, also known as Jack Thompson, in large type and in capital letters:

"No Champ Has Been Able to Retire on Ring Earnings', and then in smaller letters;

"Of the 31 Negroes who held world boxing championships, five are still very much on the scene as title holders, six other are still boxing although over the hill, eight are dead and 12 have hung up their gloves for good. While many won fame, none quit the ring with enough money to live on. Young Jack Thompson, the handsome, slashing boxing master master [sic] who roared out of his native Los Angeles in 1931 to capture the welterweight title from Jackie Fields, wound up a dope-sodden derelict on the shadowy San Francisco waterfront where one morning his knife-scarred body was fished from the Bay."

7. All of said statements were false and published without any foundation whatever, and 'the same was done without consent of the plaintiffs.'

8. The 'publication was done falsely, maliciously, wrongfully and unlawfully, and unprivileged and without occasion or excuse and has caused plaintiffs great mental pain and anguish, humiliation and mortification, and has caused an evil opinion of their deceased brother, Jack Thompson, in the minds of his former associates and the public generally; that in truth and in fact at the time the said Jack Thompson retired from his vocation as a boxer, he did have sufficient 'money to live on'; that in truth and in fact he did not wind up a 'dope-sodden derelict on the San Francisco waterfront' nor was his 'knife-scarred body fished from the Bay'.'

9. By the publication of the article defendant intended to convey the meaning, and it was understood by the persons reading it to mean, that Thompson was a person outside of respectable society; that he was a 'human wreck'; and that he met his death through the excessive use of opiates, and that he was a dope addict. The publication was wholly false and defamatory.

10. By reason of the premises, plaintiffs have been 'generally' damaged in a specified amount.

Plaintiffs first contend the complaint states facts sufficient to constitute a cause of action for wrongful invasion of the right of privacy.

The right of privacy is a purely personal one. Prosser on Torts, 2d ed., 641, § 97; Mau v. Rio Grande Oil, Inc., D.C., 28 F.Supp. 845, 846. 'A right of action for violation of one's right of privacy being purely a personal one, appellant must allege and prove an invasion of his own right of privacy before he can recover.' Metter v. Los Angeles Examiner, 35 Cal.App.2d 304, 310, 95 P.2d 491, 495.

The gist of the cause of action in a privacy case is not injury to the character or reputation but a direct wrong of a personal character resulting in injury to the feelings without regard to any effect which the publication Ay have on the property, business, pecuniary interest, or the standing of the individual in the community. Reed v. Real Detective Pub. Co., 63 Ariz. 294, 162 P.2d 133, 138; Continental Optical Co. v. Reed, 119 Ind.App. 643, 86 N.E.2d 306, 88 N.E.2d 55, 14 A.L.R.2d 743, 747. The right of privacy concerns one's own peace of mind, while the right of freedom from defamation concerns primarily one's reputation. Reed v. Real Detective Pub. Co., 63 Ariz. 294, 162 P.2d 133, 139; Pound in 28 Harv.L.Rev. 343, 362-363. The injury is mental and subjective. It impairs the mental peace and comfort of the person. Pound in 28 Harv.L.Rev. 343, 363; Fairfield v. American Photocopy Equipment Co., 138 Cal.App.2d 82, 86, 291 P.2d 194; Annotation, 14 A.L.R.2d 750.

Dean Prosser says: 'The right [of privacy] is a personal one, and it does not extend to the plaintiff's dog. The action cannot be maintained by a relative of the person concerned, unless that relative is himself brought into unjustifiable publicity. The cause of action does not survive the individual, and cannot exist after death.' (Prosser on Torts, 2d ed., 641, § 97.)

Coverstone v. Davies, 38 Cal.2d 315, 239 P.2d 876, was in part an action by the parents of William L. Mock for the alleged violation of their right of privacy. William had been arrested, tried and acquitted of a public offense. The claimed violation of his parents' right of privacy was predicated on the publicity attendant on William's arrest and trial. The court stated (38 Cal.2d at pages 322, 323, 239 P.2d at page 880):

'While the right of action for the invasion of one's privacy is recognized in California [citations], it is clear that the principles which govern the right to recover on such theory do not encompass the facts asserted herein. [Citation.] The gravamen of the tort is ordinarily the unwarranted publication by defendant of intimate details of plaintiff's private life. * * *

'So far as the briefs and independent research have revealed, there have been no instances wherein courts have allowed recovery on this theory, where defendant's alleged wrongful act was directed toward a third person, and only as an incident to that act was it claimed that plaintiff's privacy had been invaded. Neither reason nor authority indicates that there should be an extension of liability to cover such a situation. Such a rule would open the courts to persons whose only relation to the asserted wrong is that they are related to the victim of the wrongdoer and were therefore brought unwillingly into the limelight. Every defamation, false impriasonment, and malicious prosecution would then be an actionable invasion of the privacy of the relatives of the victim.' Also see Wright v. R.K.O. Radio Pictures, D.C., 55 F.Supp. 639, 640-641; Schumann v. Loew's Incorporated, Sup., 135 N.Y.S.2d 361, 365-368.

The authorities appear to be uniform that the right of privacy cannot be asserted by anyone other than him whose privacy is invaded. The publication did not invade plaintiffs' privacy in any respect. There was nothing in it which brought plaintiffs into unjustifiable or any publicity.

What is said in Kelley v. Post Publishing Co., 327 Mass. 275, 98 N.E.2d 286, at page 287, is appropriate:

'The law does not provide a remedy for every annoyance that occurs in everyday life. Many things which are distressing or may be lacking in propriety or good taste are not actionable. Moreover, if the parents had a cause of action in a case like the present there would seem to be no reason why other members of the immediate family, the brothers and sisters, whose sensibilities may also have been wounded should not also be permitted to sue. The only reference to the plaintiffs was that the girl whose body appeared in the photograph was their daughter. This can hardly be said to interfere with their privacy.'

We find nothing in Smith v. Doss, 251 Ala. 250, 37 So.2d 118, or in Schuyler v. Curtis, 147 N.Y. 434, 42 N.E. 22, 31 L.R.A. 286, contrary to the views we have expressed. Plaintiffs get more out of those cases than the courts put in. Bazemore v. Savannah Hospital, 171 Ga. 257, 155 S.E. 194, and Douglas v. Stokes, 149 Ky. 506, 149 S.W. 849, 42 L.R.A.,N.S., 386, also relied on by plaintiffs, are not analogous. They were distinguished in Metter v. Los Angeles Examiner, supra, 35 Cal.App.2d 304, 310, 95 P.2d 491; Bazemore, on the ground there was a violation of a confidential relation in the publication of a photograph; Douglas, on the ground there was a breach of contract also in the publication of a photograph. They were also distinguished in Schumann v. Loew's Incorporated, Sup., 135 N.Y.S.2d 361, 366-367.

Plaintiffs also argue the complaint states facts sufficient to constitute a cause of action for libel.

'Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his...