Klug v. Sheriffs

• Citation: 129 Wis. 468,109 N.W. 656
• Parties: KLUG v. SHERIFFS.
• Decision Date: 20 November 1906
• Court: Wisconsin Supreme Court

129 Wis. 468

109 N.W. 656

KLUG

v.SHERIFFS.

Supreme Court of Wisconsin.

Nov. 7, 1906.

Dissenting Opinion Nov. 20, 1906.

Appeal from Superior Court, Milwaukee County; J. C. Ludwig, Judge.

Action by Alexander Klug against George D. Sheriffs. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

This is an appeal from a judgment of the circuit court of Milwaukee county dismissing the plaintiff's complaint. The plaintiff, an artist, contracted with defendant to paint a portrait of his deceased wife, and for such purpose, at plaintiff's request, defendant furnished two photographs, one taken in doors; and the other, a group photograph, taken out of doors, in which she appeared with others. The photographs were furnished for the purpose of aiding plaintiff in the work. It was agreed between plaintiff and defendant that a portrait should be painted from the “outing” photograph for $175, which was done, and the portrait delivered and paid for. A few days after defendant received the portrait, plaintiff wrote him that, without any direction, he had painted a portrait of his deceased wife from the “outdoor” photograph, and asked whether defendant desired to see it. Defendant, by letter, requested that the second portrait be brought to his house, which was done. The painting was never returned or paid for. This action was brought to recover for goods sold and delivered of the alleged value of $190. The case was tried by the court without a jury, and the court found: “That, without any authority, contract, or permission from said defendant, said plaintiff painted and prepared a second portrait of defendant's deceased wife from the aforesaid photographs, while the same were still in his possession. That after said plaintiff had delivered the first portrait to said defendant, and had received the agreed price therefor, he, the said plaintiff, notified said defendant that he had painted a second portrait of defendant's deceased wife from said photographs, and inquired whether said defendant desired to see said second portrait, to which inquiry said defendant replied, and instructed said plaintiff to bring said second portrait to his house; and, in response to said suggestion so made by said defendant, the plaintiff brought said second portrait to the house of defendant, and upon inquiry as to the price of said second portrait, stated that the same would be one hundred and seventy-five ($175.00) dollars, which price said defendant refused to pay him therefor, and also refused to surrender to him, the said plaintiff, the said portrait, for the reason that said plaintiff had received no instruction, authority, or direction to paint same, and the defendant then and there offered to destroy said portrait, which said plaintiff refused to have done. That at the time of the delivery of said portrait, as aforesaid, said defendant offered to have the picture removed from the frame, which said plaintiff had placed thereon; and, prior to the commencement of this action, the defendant offered and tendered to said plaintiff the frame in which said picture was set, and the plaintiff refused same, and still refuses same; that said defendant has ever since said day held himself in position, and has been ready and willing to return said frame, but said plaintiff refused, and still refuses, to receive the same. That said plaintiff had no authority to paint said second portrait from the photographs in his possession, thus received for the purpose of painting said first portrait, and that the doing of the same was a breach of faith on the part of said plaintiff, and he acquired no property rights or interest in said picture by reason thereof.” Judgment dismissing the plaintiff's complaint, with costs, was entered, from which this appeal was taken.

Dodge, J., dissenting.

A. C. Umbreit, for appellant.

J. W. Wegner, for respondent.

KERWIN, J. (after stating the facts).

The facts in this case are substantially undisputed, and the questions of law are: (1) Whether the painting of the second portrait was an invasion of the so-called “right of privacy”; and (2) whether the painting of the second portrait was a breach of trust, contract, or confidence, and whether the plaintiff acquired any property in the second portrait.

1. Upon the first proposition, as regards the right of privacy, the authorities seem to leave the question in some uncertainty, as to the extent to which courts will go in enforcing the right. In Atkinson v. Doherty, 121 Mich. 372, 80 N. W. 285, 46 L. R. A. 219, 80 Am. St. Rep. 507, it was held that equity will not restrain the use of the name and likeness of a deceased person as a label for a brand of cigars named after him, though offensive to the family of the deceased, so long as it did not amount to a libel. In Schuyler v. Curtis et al., 147 N. Y. 434, 42 N. E. 22, 31 L. R. A. 286, 49 Am. St. Rep. 671, it was held that the individual right of privacy, which any person has during life, dies with the person, and any right of privacy which survives, is a right pertaining to the living only. In this case the plaintiff brought an action to restrain defendants from making a statute or bust of deceased, Mrs. Schuyler, or from receiving subscriptions for the purpose of defraying the cost of making the same, and also restraining them from using the name of Mrs. Schuyler, or circulating any description of her in connection with the “Woman's Memorial Fund Association.” The action was brought by relatives of Mrs. Schuyler, and it was held that the action could not be maintained; it appearing that the motive of the parties interested in erecting a bust was to do honor to the memory of the deceased. Again, the question was considered by the Court of Appeals of New York, in Roberson v. Rochester F. B. Co. et al., 171 N. Y. 538, 64 N. E. 442, 59 L. R. A. 478, 89 Am. St. Rep. 478, Chief Justice Parker writing the opinion, in which he reaches the conclusion substantially: “An individual's so-called ‘right of privacy,’ founded upon the claim that he has the right to pass through this world, if he wills, without having his picture published, his business enterprises discussed, his successful experiments written up for the benefit of others, or his eccentricities commented upon either in handbills, circulars, catalogues, periodicals, or newspapers, and, necessarily, that the things which may not be written and published of him must not be spoken of him by his neighbors, whether the comment be favorable or otherwise, does not exist in the law, and is not enforceable in equity. * * * An injunction cannot be granted to restrain the unauthorized publication and distribution of lithographic prints, or copies, of a photograph of a young woman as part of an advertisement of a legitimate manufactured article, where there is no allegation that the picture is libelous in any respect; but, on the contrary, the gravamen of the complaint is that the likeness is so good that it is easily recognized, and that it has been and is used to attract attention to the advertisement upon which it is placed, although the publication has caused her great mental and physical distress, necessitating the employment and attendance of a physician.” There is, however, in each of these cases a vigorous dissenting opinion by Justice Gray. The late case of Pavesich v. New England L. Ins. Co. (Ga.) 50 S. E. 68, 69 L. R. A. 101, by the Supreme Court of Georgia, approves the doctrine laid down in the dissenting opinion of Justice Gray in the New York cases, and, in a very able and exhaustive opinion reviewing the cases, holds that the right of privacy is a form of property as much as the right of immunity of one's person. Most of the leading cases are collected and discussed in this case. In the opinion the court quotes approvingly the following language from the dissenting opinion of Justice Gray, in Roberson v. Rochester F. B. Co. et al., supra: “The right of privacy, or the right of the individual to be let alone, is a personal right, which is not without judicial recognition. It is the complement of the right to the immunity of one's person. The individual has always been entitled to be protected in the exclusive use and enjoyment of that which is his own. The common law regarded his person and property as inviolate, and he has the absolute right to be let alone. Cooley, Torts, p....