McQueen v. Wilson, 43182

• Decision Date: 07 March 1968
• Docket Number: 3,2,No. 43182,Nos. 1,43182,s. 1
• Parties: Butterfly McQUEEN v. C. T. WILSON et al
• Court: Georgia Court of Appeals

Page 63

161 S.E.2d 63

117 Ga.App. 488

Butterfly McQUEEN v. C. T. WILSON et al.

No. 43182.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

March 7, 1968.

Rehearing Denied March 28, 1968.

Certiorari Granted May 9, 1968.

Syllabus by the Court

1. Where during the same term of court a motion to reconsider rulings on demurrer is granted together with a supersedeas of the judgment until further order of the court, and a second order on demurrer is subsequently entered, a notice of appeal from the latter judgment is a sufficient basis for a consideration of the enumerations of error relating to both judgments.

2. The Civil Court of Fulton County has no jurisdiction over an action for damages for invasion of the right of privacy in the sense of trespass on or intrusion into one's private life, this being an injury to the person.

3. The Civil Court of Fulton County may entertain an action for damages based on the appropriation of the plaintiff's name and likeness, created by the plaintiff for her own professional and financial benefit, for the financial benefit of the defendants and without her consent.

4. Under the pleading rules in effect at the time of the inception of this action, there is a misjoinder of parties defendant.

The plaintiff filed a two-count petition in the Civil Court of Fulton County seeking damages against Atlanta News Agency, Inc., Stone Mountain Plantation, Inc., and Clarence Wilson alleging that she had made a home movie with the latter two defendants on their promise to pay the reasonable value of her services as an actress, with the further agreement that she would have the right to sell postcards made from the pictures and that defendants would sell nothing with her name or picture on it until the parties entered into a written contract. The contract was not made, plaintiff was not paid for the movie, and defendants without her knowledge and consent prepared and sold the following articles made up with her picture and name on them without reimbursing her: postcards, 35 millimeter movie slides, home movies, and a souvenir booklet of Stone Mountain Park. Plaintiff never consented to the sales or to the use of her name on the products sold. 'Such use of her name and reproduction of her picture and its sale to anyone who wanted to buy it deprived her of her property right in her picture and name, resulting in an unjust enrichment of defendants * * *. Petitioner is entitled to damages from all defendants because of their conduct in depriving her of her property right' therein. The second count alleges that these facts constitute an invasion of her privacy for which damages are sought.

Samuel D. Hewlett, L. Paul Cobb, Jr., Atlanta, for appellant.

Carpenter & Karp, LeRoy C. Hobbs, Ben J. Camp, Arnall, Golden & Gregory, Cleburne E. Gregory, Jr., Atlanta, for appellees.

DEEN, Judge.

1. On June 27, 1967, a judge of the Civil Court of Fulton County sustained the general demurrer of each of the defendants and dismissed the case. At the same term of court plaintiff filed a motion to reconsider with rule nisi, which was signed by the judge and by its terms acted as a supersedeas until further order of the court. Thereafter on July 26 the court entered another order sustaining the general demurrers of each defendant and also a special demurrer of each contending that there was a misjoinder of parties defendant. A motion to dismiss the appeal has been filed in this court on the ground that the order of June 27, which is contended to be the final judgment dismissing the case was not appealed from within 30 days. This court is of the opinion that the case of LeCraw v. L.P.D., Inc., 114 Ga.App. 281, 150 S.E.2d 927, and like cases are not controlling where in analogous situations motions for reconsideration were filed, for the reason that here the grant of the supersedeas tolled time for filing an appeal. Where during the same term a motion to set aside the judgment is entertained, the order thereon is the final appealable judgment in the case. Pazol v. Citizens National Bank of Sandy Springs, 112 Ga.App. 161, 144 S.E.2d 117. The motion is denied.

2. The Civil Court of Fulton County has no jurisdiction over direct or indirect injuries to the person or reputation. Cantrell v. Davis, 176 Ga. 745, 169 S.E. 38; Funk v. Baldwin, 80 Ga.App. 177, 55 S.E.2d 733. The definition of the right of privacy as the term was used in Pavesich v. New England Life Ins. Co., 122 Ga. 190(5), 50 S.E. 68, 69 L.R.A. 101 and as it is generally considered in the cases dealing with the subject, is one that deals with the person as a person, his mental proclivities and emotional reactions. 'It is, simply stated, the right to be let alone; to live one's life as one chooses, free from assault, intrusion or invasion except as they can be justified by the clear needs of community living under a government of law.' Fortas, J., dissenting in Time, Inc. v. Hill, 385 U.S. 374, 413, 87 S.Ct. 534, 555, 17 L.Ed.2d 456. So considered as stated in Reed v. Real Detective Pub. Co., 63 Ariz. 294, 162 P.2d 133, 138: 'It is an incident of the person, and not of property. It is a personal action which does not survive the death of the injured party. It does not exist if there has been consent to publication, or where the plaintiff has become a public character, and thereby waived his right to privacy, nor in the ordinary dissemination of news and events, nor in connection with the life of a person in whom the public has a rightful interest, nor where the information would be of public benefit.' It is clear that Count 2 of the petition in this case is based on an invasion of the plaintiff's privacy in this traditional sense. The general demurrer to this count was correctly sustained both on the theory that the Civil Court of Fulton County has no jurisdiction over injuries to the person, feeling and sensibilities, and on the ground that as to this phase of the right of privacy the plaintiff clearly, by acting in the home movie, was seeking exactly the kind of publicity which she obtained, that is, an extension of her public image as Prissie in the movie Gone With the Wind. Once consenting to the use of one's name in a given situation waives one's right of privacy in that area. Tanner-Brice Co. v. Sims, 174 Ga. 13(4), 21, 161 S.E. 819. The plaintiff's consent was to the use of her name, photograph and image in the very manner in which it was used (a movie identifying her as Prissie) although she did not consent to the making and sale of the otherwise correct reproductions of this film on postcards, slides, and leaflet illustrations. Pavesich and its offspring afforded no precedent which would shield Count 2 from the demurrers interposed.

3. As to Count 1 a different principle obtains. Both before and since Pavesich it has been recognized that the appropriation of another's identity, picture, papers, name or signature without consent and for financial gain might be a tort for which an action would lie on the theory that it constitutes an invasion of a property right. As an early example, it is pointed out in Cason v. Baskin, 155 Fla. 198, 20 So.2d 243, 168 A.L.R. 430, 438 that in the case of Prince Albert v. Strange, 64 Eng Reprint 293, aff. 41 Eng.Rep. 1171 'the English Judge instructed the jury that the unauthorized publication of etchings made by the Queen and Prince Consort for their own private amusement amounted to an invasion of their privacy, but the Court saw fit to base its decision upon the nominal right of property.' In 1906 it was observed in Klug v. Sheriffs, 129 Wis. 468, 109 N.W. 656, 657, 7 L.R.A.,N.S., 362: 'It will be seen, however, upon examination of the cases cited as sustaining the so-called 'right of privacy' that many of them turn upon property rights or breach of trust, contract or confidence.' In United States Life Ins. Co. v. Hamilton, Tex.Civ.App., 238 S.W.2d 289, 292, a former employer of the plaintiff continued to send out letters over his signature as manager after his employment had terminated, and the court held: 'The use of an individual's signature for business purposes unquestionably constitutes the exercise of a valuable right of property in the broadest sense of that term * * * In this broad sense, we have no doubt that the unauthorized use of appellee's name and signature by appellants, regardless of why it was so used, constituted such wrongful conduct on their part as to entitle appellee to the recovery of nominal damages, even though no actual damages were shown.' But when we hold that the unauthorized reproduction and sale of the plaintiff's pictures for the financial gain of the defendant is an actionable tort independent of elements of injury to the person, we have direct authority in Cabaniss v. Hipsley, 114 Ga.App. 367(4), 151 S.E.2d 496. Both cases deal with a performer whose livelihood depends to some extent on the public image created by her efforts and talent-there, an exotic dancer; here, an actress in a well known movie. Both plaintiffs have packaged their personality within the area of performance as a commodity for sale to the public, and it can no more be tolerated that another take this commodity developed and marketed by the plaintiff for private gain than that her dress or automobile be misappropriated in like manner. 'The main distinction between this aspect of privacy and the other three is the distinction between causes of action involving injury to feelings, sensibilities or reputation and those involving an appropriation of rights in the nature of property rights for commercial exploitation.' (Emphasis added.) Cabaniss, supra, at page 377, 151 S.E.2d at page 504. This case also points out that the measure of damages is the advertising value of the use of the material in the manner and for the time it was appropriated, but failure to state a correct measure of damages subjects the petition to special rather than general demurrer. It was error to dismiss the petition...