Thayer v. Worcester Post Co.

• Decision Date: 17 October 1933
• Citation: 187 N.E. 292,284 Mass. 160
• Parties: THAYER v. WORCESTER POST CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

284 Mass. 160

187 N.E. 292

THAYER

v.WORCESTER POST CO.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 17, 1933.

Report from Superior Court, Worcester County; Whiting, Judge.

Action by Jane H. Thayer against the Worcester Post Company. On report from the superior court after demurrers to counts 1 and 4 of the declaration had been sustained, and demurrers to counts 2, 3, 5, and 6 had been overruled.

Orders affirmed.

M. M. Taylor, of Worcester, for plaintiff.

F. T. Mullin and J. F. McGrath, both of Worcester, for defendant.

RUGG, Chief Justice.

The plaintiff seeks to recover in this action of tort compensation for damages alleged to have been caused to her by publications in the Worcester Evening Post, a daily newspaper published in Worcester. The declaration contains six counts. All are based on publications on February 6 and November 10, 1930, of the pictures of herself with certain accompanying words. The allegations in all the counts are that the plaintiff is the wife of Fred B. Thayer; that a photograph was taken prior to February 6, 1930, of the plaintiff, her husband, his chauffeur, Albert Desjardin, an airplane pilot, and another man, all standing in front of the airplane of her husband at an airport in Lowell, Massachusetts; that the photograph was not taken by any contract or arrangement made by the plaintiff but as she believes was taken by contract or arrangement with her husband; that all parts of this photograph except the pictures of the plaintiff and the chauffeur (who were standing beside each other) were in some way concealed and those pictures enlarged and changed were published on February 6 with the words printed beneath ‘Above (left to right)-Albert Desjardin, chauffeur, who has been sued for $25,000 in alienation suit by Fred B. Thayer, wealthy and prominent resident of North Grafton (below) and Mrs. Jane H. Thayer, who is suing her husband for divorce, charging cruelty, abusive treatment and intoxication. The husband has entered a cross libel and indications are that the action will be bitterly fought by both sides in Probate Court’ and with the words printed above ‘Principals in local divorce scandal,’ and on November 10 with the words printed beneath ‘Albert Desjardin, chauffeur, named as co-respondent by Fred B. Thayer, and Mrs. Jane H. Thayer, who has filed a cross-bill of divorce against her husband’ and with the words printed above ‘Principals in local divorce scandal’; that the plaintiff has in no way whatsoever authorized the defendant to publish any portion of the picture, and did not know that any one had authorized such publication. The essential additional allegations in counts 1 and 4 are that the plaintiff has the right of privacy and also a right of property in any picture of herself taken in a private capacity, and that such publications were a violation of that right. These counts are founded exclusively on the right of privacy. The additional allegations in the remaining counts sound in libel.

1. Counts 2, 3, 5 and 6 contain adequate allegations to set forth causes of action in libel. Each of these counts contains the pictures of the plaintiff and of the chauffeur of her husband as excerpted from the photograph of five persons including the husband of the plaintiff, standing in front of his airplane. The pictures with the accompanying and explanatory printed words are of such nature as to warrant a finding that they are defamatory. It might be found in the circumstances of the publications that reasonable persons would be likely to interpret them in a libelous sense. They tended to, or might reasonably be found to tend to expose the plaintiff to contempt, to blacken her reputation or to bring her into disrepute, because of the implications of improprieties between her and the chauffeur. It is not necessary that the charge of indiscretions or want of chastity be direct and explicit; but anything fairly imputing immorality is actionable. Words, pictures or signs, singly or in combination, understood as mankind in general would understand them, conveying such an imputation render the publication libelous. ‘An insinuation may be as actionable as a direct statement. * * * In libel, it is enough, whatever the form, that the manifest tendency of the words is seriously to hurt the plaintiff's reputation.’ Haynes v. Clinton Printing Co., 169 Mass. 512, 513, 48 N. E. 275;Clark v. Binney, 2 Pick. 113, 115;Goodrich v. Davis, 11 Metc. 473, 481;Craig v. Proctor, 229 Mass. 339, 340, 118 N. E. 647; Tolley v. J. S. Fry & Sons, Ltd., [1931] A. C. 333, 338, 339, 342, 344.

The allegations of counts 3 and 6 plainly constitute a charge of libel. While the allegations of counts 2 and 5 are somewhat less conventional in form, they are adequate to set forth a cause of action sounding in libel.

2. The question whether there is under the law of this commonwealth any such right of privacy as is invoked by the plaintiff in counts 1 and 4 has never arisen in this court. This...