Munden v. Harris

• Citation: 153 Mo. App. 652,134 S.W. 1076
• Parties: MUNDEN v. HARRIS et al.
• Decision Date: 30 January 1911
• Court: Court of Appeal of Missouri (US)

134 S.W. 1076

153 Mo. A. 652

MUNDEN v. HARRIS et al.

Kansas City Court of Appeals. Missouri.

January 30, 1911.

1. PROPERTY (§ 2)—NATURE OF "PROPERTY."

Property may consist of incorporeal things consisting of rights common in every man, and the privilege and capacity to exercise a right, though unexercised, is "property" of which one cannot be deprived.

2. INJUNCTION (§ 96)—PERSONAL RIGHTS— "RIGHT OF PRIVACY."

The "right of privacy," though an intangible right, is a legal right, for an invasion of which the law gives relief in equity by injunction, and such right extends to the unauthorized use by one person of the picture of another.

3. TORTS (§ 8)—PERSONAL RIGHTS—RIGHT OF PRIVACY.

One has the exclusive right to his picture as a property right of material profit, and, unless he has expressly or impliedly consented to its use by others, he may sue at law for damages for the invasion of the right.

4. TORTS (§ 5)—DAMAGES—SPECIAL DAMAGES.

Where one's exclusive right to his picture is invaded, special damages, though recoverable, if demanded, are not necessary in an action at law for damages, and general damages are recoverable without a showing of specific loss.

5. DAMAGES (§ 91)—EXEMPLARY DAMAGES— GROUNDS.

For the malicious invasion of one's right of privacy by the unauthorized use of his picture, exemplary damages are recoverable.

6. LIBEL AND SLANDER (§ 16)—PUBLICATION —CONSTITUTING "LIBEL."

Under Rev. St. 1909, § 4818, defining "libel" as any publication exposing one to public hatred, contempt, or ridicule, the publication, without consent, of the picture of a child five years old, with the false statement that "Papa is going to buy mamma an Elgin watch for a present, and some one (I must not tell who) is going to buy my big sister a diamond ring, so don't you think you ought to buy me something?" as an advertisement in aid to business, is libelous, as exposing the child to ridicule.

7. INFANTS (§ 60)—TORTS—LIABILITY.

An infant is not liable for slander or libel, where he is under the age of seven years, and, where he is over the age of seven and under the age of fourteen years, he is not liable, unless he is capable of entertaining the malice essential in libel and slander.

8. INFANTS (§ 59)—TORTS—LIABILITY.

A child of tender years is civilly liable for a trespass, since intent is not material.

9. INFANTS (§ 59)—TORTS—LIABILITY.

An infant is not guilty of fraud, unless he has sufficient years of discretion to invent and perpetrate a fraud.

10. LIBEL AND SLANDER (§ 6)—PERSONS WHO MAY BE LIBELED.

To falsely charge an infant of tender years with being afflicted with a loathsome disease, or with a private and humiliating physical malformation, is libelous.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action by Onel Munden, by next friend, against P. S. Harris and others. From a judgment for defendants rendered after sustaining a demurrer to the petition, plaintiff appeals. Reversed and remanded.

John C. Nipp, for appellant. Haff & Michaels, for respondents.

ELLISON, J.

This action is stated in a petition with two counts, one for damages for disturbing plaintiff's privacy by publishing his picture without his consent, and the other for libel in publishing the picture, along with false statements attributed to plaintiff. In each count punitive damages were asked, but no special damages were alleged. Defendants demurred to the petition, as not stating a cause of action. The demurrer was sustained, and, plaintiff refusing to amend, judgment was rendered against him, and he appealed.

Plaintiff is an infant five years old, and the action was brought through a "next friend," as required by statute. The facts stated in the first count of the petition are that defendants, being jewelry merchants in Kansas City, invaded plaintiff's right of privacy by willfully and maliciously using, publishing, and circulating his picture for advertising their business of selling merchandise, thereby destroying his privacy and humiliating, annoying, and disgracing him, and exposing him to public contempt. In the second count the facts, after certain preliminary allegations, are stated to be that:

"Defendants did wrongfully and maliciously compose, print, and publish and cause to be composed, printed, and published, of and concerning plaintiff, together with his photograph, the following false, defamatory, scandalous, and malicious libel, meaning thereby, and so understood by persons who saw the same, to impute to plaintiff a falsehood, and attributing to plaintiff in said publication, a statement which was false and malicious, to wit:

                              `Papa is going to buy mamma
                              an Elgin watch for a present
                              and some one (I mustn't tell
                              who) is going to buy my big
                              sister a diamond ring. So don't
                              you think you ought to buy me
                 [Picture     something? The payments are
                     of       so easy, you'll never miss the
                Plaintiff.]   money if you get it of
                                 Harris-Goar Co
                                    1207 Grand Ave
                                         Kansas City, Mo
                              Gifts for Everybody
                              Everywhere in their
                              Free Catalogue.'"
                

The upshot of defendants' position in support of their demurrer to the first count is that there is no right of privacy of which the law will take notice; or, stated differently, their argument is that the law does not afford redress for an invasion by one person of another's privacy, unless it is accompanied by some injury to his property or interference therewith, and that the mere printing and publishing one's picture does not and cannot affect his property. The cases principally relied upon by defendants are those of Roberson v. Rochester Folding Box Co., 171 N. Y. 538, 64 N. E. 442, 59 L. R. A. 478, 89 Am. St. Rep. 828; Henry v. Cherry & Webb, 30 R. I. 13, 73 Atl. 97, 24 L. R. A. (N. S.) 991; and Atkinson v. Doherty & Co., 121 Mich. 372, 80 N. W. 285, 46 L. R. A. 219, 80 Am. St. Rep. 507, in the first of which, in the course of an interesting opinion concurred in by a majority of the court, is found a course of reasoning which denies that a right of privacy exists which can be protected by a court of equity. That case was a bill in equity to enjoin a mercantile firm from publishing a young woman's picture as an attraction to an accompanying advertisement of a certain brand of flour. The court, in denying the right of equity to protect a person thus embarrassed, shows its unfriendliness to the claim in the following language: "The so-called right of privacy is, as the phrase suggests, founded upon the claim that a man 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."

The conclusion of the court is based much upon the statement that the case there presented was without precedent, and, while admitting that equity, in the beginning and early part of its administration, was made up of growth, case by case, which was without precedent, being based merely upon the conscience of the chancellor, yet there came a time when its growth ceased, and what was formerly the personal conscience of the chancellor became a "juridical conscience," which would only permit relief to be administered in cases where it had been administered before, save in those instances "where there can be found a clear and unequivocal principle of the common law which either directly or mediately governs it, or which by analogy or parity of reasoning ought to govern it." With such consideration as a guiding thought, the court refused relief, because there was no precedent for it, and it did not appear to be within any recognized legal principle. This view is approved in Henry v. Cherry & Webb, which was an action at law in the nature of trespass for damages for an invasion of the right of privacy by using and publishing the plaintiff's picture as an advertisement in aid of the sale of merchandise. In such respect it was like Roberson v. Rochester Folding Box Co. Though one was an application in equity for restraint and the other was for damages at law, yet as each, by similar reasoning, denied that there was any such right, both denied any remedy.

The remaining case (Atkinson v. Doherty & Co.) was where, after the death of John Atkinson, a celebrated lawyer, the defendants, who were manufacturers of cigars, named a brand of their make the "John Atkinson Cigar," and placed the name, together with his picture, as a label on cigar boxes. His widow sought to restrain such acts by injunction. Her right was denied, and again the reasoning in Roberson v. Rochester Folding Box Co. was approved. But it will be observed that, while the Roberson Case involved the right of privacy of the plaintiff's own picture, the Atkinson Case, like that of Schuyler v. Curtis, 147 N. Y. 434, 42 N. E. 22, 31 L. R. A. 286, 49 Am. St. Rep. 671, sought to protect the right of privacy to the name of the deceased relative, a case which did not call for much that was said in the course of the opinion concerning the general right of privacy, except by way of argument or illustration; and what was said beyond the right of privacy, which may be claimed by relatives of a deceased, must be regarded as dictum. The point of agreement in these cases is that no relief can be had by way of protecting a right of privacy, for the reason that it was not a right of property and did not fall within any legal principle.

But courts which refuse assent to those decisions assert that it is a right of property, and that there is...