McNutt v. New Mexico State Tribune Co.

• Decision Date: 09 July 1975
• Docket Number: No. 1669,1669
• Citation: 1975 NMCA 85,538 P.2d 804,88 N.M. 162
• Parties: , 84 A.L.R.3d 1148 Ralph E. McNUTT and Delia S. McNutt, husband and wife, Leroy Urioste and Dolores M. Urioste, husband and wife, Ted Drennan and Patricia K. Drennan, husband and wife, Rialo Pollo and Elizabeth Ann Pollo, husband and wife, Jose B. Salazar and Doris R. Salazar, husband and wife, Plaintiffs- Appellants, v. NEW MEXICO STATE TRIBUNE COMPANY, a New Mexico Corporation, d/b/a the Albuquerque Tribune, Scripps Howard Publishing Company, a foreign Corporation, and Harry Moskos, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 804

538 P.2d 804

88 N.M. 162, 84 A.L.R.3d 1148

Ralph E. McNUTT and Delia S. McNutt, husband and wife, Leroy Urioste and Dolores M. Urioste, husband and wife, Ted Drennan and Patricia K. Drennan, husband and wife, Rialo Pollo and Elizabeth Ann Pollo, husband and wife, Jose B Salazar and Doris R. Salazar, husband and wife, Plaintiffs- Appellants, v. NEW MEXICO STATE TRIBUNE COMPANY, a New Mexico Corporation d/b/a the Albuquerque Tribune, Scripps Howard Publishing Company, a foreign Corporation, and Harry Moskos Defendants-Appellees.

No. 1669.

Court of Appeals of New Mexico.

July 9, 1975.

Certiorari Denied Aug. 5, 1975.

[88 N.M. 164] Robert N. Singer, Coors, Singer & Broullire, Albuquerque, for appellants.

John B. Tittman, Keleher & McLeod, Albuquerque, for appellees.

OPINION

HERNANDEZ, Judge.

Plaintiffs filed this case in tort alleging invasion of their right of privacy under three causes of action. The second count related to the Scripps Howard Publishing Company and was dismissed by agreement of counsel. The first count alleged an invasion of the privacy of plaintiffs by the defendant, New Mexico State Tribune Company, d/b/a The Albuquerque Tribune (Tribune). The third count alleged an invasion of the privacy of plaintiffs by the defendant, Harry Moskos. This appeal arises from an order granting defendants' motions for summary judgment. We affirm.

The facts are as follows: Two of the plaintiffs were members of the Albuquerque Police Department; three were members of the New Mexico State Police. The remaining plaintiffs are the respective wives of the officers.

During the early hours of January 29, 1972, these officers became engaged in a gun battle with two individuals who were attempting to steal dynamite from a highway construction site southwest of Albuquerque at a place called Black Mesa. In the aftermath, it was determined that the two individuals were members of a group known as the Black Berets. They were both killed.

On Monday, January 31, 1972, the Tribune carried an article covering the events at Black Mesa which gave the names and home addresses of the plaintiff officers. Defendant Harry Moskos was the city editor of the Tribune, which is published by the defendant, New Mexico State Tribune Company. Prior to publication of the January 31, story, defendant Moskos had called several of the officers, including plaintiffs McNutt and Urioste, seeking information for his article. The officers told Mr. Moskos that they had been instructed not to discuss the matter, and they referred him to their superiors. Urioste and McNutt stated that Mr. Moskos said that he was going to print their names and addresses because they would not cooperate in giving the details he sought. Officer McNutt urged unsuccessfully that Moskos not publish these facts for his family's sake. Subsequent to publication of the article, several of the officers and members of their families received anonymous phone calls threatening violence.

Plaintiffs alleged that the publication of their names and addresses was done maliciously, and they prayed for punitive as well as actual damages.

Plaintiffs allege four points of error:

POINT I: 'THE PLEADINGS RAISE SUBSTANTIAL ISSUES OF MATERIAL FACT WHICH MUST BE DECIDED BY A JURY, PARTICULARLY THE ISSUE OF NEWSWORTHINESS.'

At the outset, we wish to clarify a matter concerning some of the pleadings about which we perceive plaintiffs to be confused. On July 11, 1972, defendants Moskos and the Tribune filed a motion pursuant to Rule 12(b)(6), Rules of Civil Procedure, § 21--1--1(12)(b)(6), N.M.S.A. 1953 (Repl.Vol. 4), to dismiss plaintiffs' complaint for failure to state a claim upon which relief could be granted. This motion was denied by the trial court on November 6, 1972. On January 15, 1974, the same defendants filed motions for summary judgment against all plaintiffs pursuant to Rule 56(c), § 21--1--1(56)(c), supra. On January 31, 1974, the trial court entered its order dismissing the complaint as to the wives of the police officers for the reason that their allegations failed to state a claim upon which relief could be granted. Thereafter, on February 12, 1974, the trial court granted the motions for summary judgment which dismissed plaintiffs' first and third causes of action with prejudice for the reason that the court could find no genuine issue of material fact warranting a trial. There is nothing in the record to indicate that the motion to dismiss for failure to state a claim was ever renewed by the defendants. We consider the trial court's order of January 31, 1974, a nullity since the prior motion of July 11, 1972, was rendered functus officio by its order of November 6, 1972. Therefore, the operant order appealed from is the one entered February 12, 1974, granting summary judgment against all the plaintiffs.

The trial court gave the following reasons for granting defendants' motion for summary judgment:

'That the names of these individuals and their addresses were within the public domain, or rather a matter of public record as such, if not official records . . .

'The court holds as a matter of law that this is a newsworthy article.

'That . . . to extend the cause of action . . . that is the invasion of privacy . . . would be to deny to the newspaper its Constitutional right of freedom of the press . . .

'Because while it might be a little more difficult to come in contact with an individual whose address has not been published than one who has, if the name is published, the name alone, anyone who would want to contact such an individual for whatever purpose, would have no difficulty in doing so, even by just identifying the individual in other respects, such as the position he holds, if there is only one position of that kind.'

We agree with the reasoning of the trial court. New Mexico recognizes the tort of invasion of the right of privacy, i.e., the right to be let alone, as it is sometimes characterized. Hubbard v. Journal Publishing Company, 69 N.M. 473, 368 P.2d 147 (1962). However, as Dean Prosser informs us:

'The early cases in all jurisdictions were understandably preoccupied with the question whether the right of privacy existed at all, and gave little or no consideration to what it would amount to if it did. . . . As it has appeared in the cases thus far decided, it is not one tort, but a complex of four . . . which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff 'to be let alone.'

'(1) (T)he appropriation, for the defendant's benefit or advantages, of the plaintiff's name or likeness.

'(2) (I)ntrusion upon the plaintiff's physical solitude or seclusion . . . (or into his private affairs).

'(3) (P)ublicity, of a highly objectionable kind, given to private information about the plaintiff, even though it is true and no action would lie for defamation.

'(4) (P)ublicity which places the plaintiff in a false light in the public eye.' Prosser, Torts § 117 (4th ed. 1971).

Plaintiffs conceive of the defendants' publication as an invasion of their 'right to seclusion' and as 'public disclosure of personal matters of private life.' Accepting arguendo, the correctness of their conception, we conclude that the actions of the defendants did not constitute an invasion of the privacy of the plaintiffs in either regard as a matter of law.

Prosser, Torts, pp. 810--811, supra, states:

'The facts disclosed to the public must be private facts, and not public ones. The plaintiff cannot complain when an occupation in which he publicly engages is called to public attention, or when publicity is given to matter such as date of his birth or marriage, or his military service record, which are a matter of public record, and open to public inspection.'

The address of most persons appears in many public records: voting registration rolls, property assessment rolls, motor vehicle registration rolls, etc., all of which are open to public inspection. They also usually appear in such places as the telephone directory and city directory which are available to public inspection. We, therefore, hold that an individual's home address is a public fact and that its mere publication, without more, cannot be viewed as an invasion of privacy.

Assuming, but not deciding, that the publication of plaintiffs' addresses in these circumstances and the subsequent threats upon them constituted an intrusion upon plaintiffs' seclusion, we nonetheless believe that the publication was privileged.

The right of privacy is not unqualified. See Blount v. T. D. Publishing Corporation, 77 N.M. 384, 423 P.2d 421 (1966). One of the key qualifications to the right is where the individual's right of privacy conflicts with the first amendment's freedom of the press. In such a circumstance, the individual's right of privacy must yield to the greater public interest in the dissemination of newsworthy material. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, 95 A.L.R.2d 1412 (1964).

Furthermore, it makes no difference whether the person involved is a public official, a public figure or a private individual. Neither is a characterization of the subject matter of the publication as political, public or private concern of determinitive import.

'The guarantees for speech and press are not the preserve of political expression or comment upon public affairs, essential as those are to healthy government. One need only pick up any newspaper or magazine to comprehend the vast range of published matter which exposes persons to public view, both private citizens and public officials. Exposure of the self to others in varying degrees is a concomitant of life in a civilized community. The risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press.

'Those guarantees are not for the benefit of the press so...