Truxes v. Kenco Enterprises, Inc.

• Decision Date: 21 February 1963
• Docket Number: No. 9958,9958
• Citation: 80 S.D. 104,119 N.W.2d 914
• Parties: Guy TRUXES, Plaintiff and Respondent, v. KENCO ENTERPRISES, INC., Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 914

119 N.W.2d 914

80 S.D. 104

Guy TRUXES, Plaintiff and Respondent, v. KENCO ENTERPRISES, INC., Defendant and Appellant.

No. 9958.

Supreme Court of South Dakota.

Feb. 21, 1963.

Woods, Fuller, Shultz & Smith, Sioux Falls, for defendant and appellant.

Dana, Golden, Moore & Rasmussen, Sioux Falls, for plaintiff and respondent.

ROBERTS, Judge.

Plaintiff brought this action against Kenco Enterprises, Inc., owner and publisher of the Sioux Falls Argus Leader, a daily newspaper, to recover damages claimed to have been sustained by reason of the unauthorized publication and circulation of his photograph in the Sunday, October 23, 1960, issue of the Argus Leader. He alleged that the use of his photograph in connection with an article dealing with the 'State's Elderly Citizens' violated his right or privacy and he was thereby subjected to ridicule and suffered mental distress and injury to his feelings. Trial to a jury resulted in a verdict for $3500. Defendant moved for judgment notwithstanding the verdict or in the alternative for a new trial. Motion was denied and defendant has appealed.

The photograph in controversy and the accompanying article occupied the top half of a page of defendant's newspaper. The headlines 'Aging: Adversity or Fortune' and 'State's Elderly Citizens Plagued By Financial Hardship' in large type appeared at the top of the page. Below the photograph of plaintiff standing in front of a case containing small compartments and sorting mail was the following caption: 'GOVERNMENT SETS PAGE--The federal government, unlike most industries, maintains a retirement age of 70 instead of the usual 65. 'Many men are in their prime at 65,' says a government official. Sioux Falls Postal employe Guy Truxes, 69, will retire Jan. 1 when reaching retirement age.' Plaintiff was not mentioned in the text and the photograph was not necessary to the article.

Plaintiff's testimony was to the effect that he objected to having his picture taken; that he did not know for what purpose it was to be used; that he was not consulted regarding its use or compensated; that as a result of the publication he felt hurt and upset; and that for some time he did not associate with friends because they 'razzed' and 'kidded' him about the publication. The author of the article testified that publication of the photograph was with knowledge and consent of the plaintiff. But plaintiff is entitled to have the evidence viewed in the light most favorable to him and to have all conflicts in evidence resolved in favor of the verdict.

The first and principal question presented is whether an action may be maintained for an invasion of the right of privacy. The question is one of first impression in this state.

The right of privacy has been defined as the right of an individual to be let alone, to live a life of seclusion, to be free from unwarranted publicity. 77 C.J.S. Right of Privacy Sec. 1; see also Davis, What Do We Mean By the 'Right of Privacy', 4 South Dakota Law Rev. 1. The author of an annotation in 138 A.L.R. 22 offers the following as a definition of what constitutes an actionable violation of such a right: 'The unwarranted appropriation or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities, in such manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities.'

The defendant points out that no right of action for invasion of privacy is recognized by statute in this state or decision of this court. It is contended that the provisions of SDC 65.0103 providing that rules of the common law not in conflict with the constitution and statutes of this state shall be in force must be construed as referring to the common law as it existed at the time of the original enactment of the provisions of this section by Chapter 105, Laws 1890, and hence the modern doctrine of privacy as a development of the common law is not adopted and declared to be the law within South Dakota. The decisions of this court hold to the contrary. The common law of this state is not so limited, but is flexible and susceptible of adaptation to the needs and demands of changing times. Moberg v. Scott, 38 S.D. 422, 161 N.W. 998, L.R.A.1917D, 732; Holmstrom v. Wall, 64 S.D. 467, 268 N.W. 423.

The courts had not prior to 1890 granted relief expressly for invasion of right of privacy although a right 'to be let alone' had been recognized 'on the basis of defamation, or the invasion of some property right, or a breach of confidence or an implied contract'. Prosser, Privacy, 48 Cal.L.Rev. 383. It was not until the publication in that year of an article by Samuel D. Warren and Louis D. Brandeis (later Justice Brandeis) in 4 Harv. Law Rev. 193 was the term the 'right of privacy' introduced and defined as a legal concept. The authors after thorough discussion of the question concluded that there is a common law right of privacy which had in some instances been protected under the guise of property rights, and that violation of the right itself is actionable. The right of privacy is generally recognized and a preponderance of authority supports the conclusion that, independently of the common rights of property, contract, reputation, and physical integrity, the right exists and an invasion of the right gives rise to a cause of action. The numerous decisions supporting these propositions are cited in the following annotations: 138 A.L.R. 22, 168 A.L.R. 446 and 14 A.L.R.2d 750.

Arguments in support of the right of privacy are summarized in 41 Am.Jur., Privacy, Sec. 9: 'One of the principal arguments advanced in support of the doctrine of privacy by its original exponents is that the increased complexity and intensity of modern civilization and the development of man's spiritual sensibilities have rendered man more sensitive to publicity and have increased his need of privacy, while the great technological improvements in the means of communication have more and more subjected the intimacies of his private life to exploitation by those who pander to commercialism and to prurient and idle curiosity. A legally enforceable right of privacy is deemed to be a proper protection against this type of encroachment upon the personality of the individual. While the early law gave redress only for physical interference with life and property, it is now recognized that man's spiritual nature also needs protection, and that his feelings as well as his limbs should be inviolate. In the formative period of the common law, before the day of newspapers, radio, and photography, when life was simpler and human relations more direct, the individual could himself adequately protect his privacy. Today this would be impossible, and to cast the individual upon his own resources in this regard would only result in a relapse into a system of private vengeance and violence which our civilization has outgrown. Freedom of speech and freedom of the press have been urged as a ground for denying the existence of the right of privacy. The right of privacy does undoubtedly infringe upon absolute freedom of speech and of the press, and it also clashes with the interest of the public in having a free dissemination of news and information. These paramount public interests must be taken into account in placing the necessary limitations upon the right of privacy. But if this right of the individual is not without qualifications, neither is freedom of speech and of the press unlimited. The latter privilege is subject to the qualification that it shall not be so exercised as to abuse the rights of individuals. Accordingly, it is held by courts recognizing the right of privacy that the constitutional guaranties of freedom of speech and of the press do not warrant the publication of matter constituting an invasion of the right of privacy any more than they give the right to defame a person.'

Restatement, Torts, Sec. 867, recognizes the existence of the right: 'A person who unreasonably and seriously interferes with another's interest in not having his affairs known to others or his likeness exhibited to the public is liable to the other.'

Concluding that the right of privacy has a foundation in the present day common law and is supported by the weight of authority, we hold that an action in this jurisdiction may be maintained for invasion of such right.

A consideration of the limits of the right of privacy requires a weighing of such right 'to be let alone' as against the public right to news and information. In the article by Samuel D. Warren and Louis D. Brandeis (4 Harv.L.Rev. 193, 214 et seq.), this limitation was thus recognized: 'The right to privacy does not prohibit any publication of matter which is of public or general interest. * * * The design of the law must be to protect those persons with whose affairs the community has no legitimate concern from being dragged into an undesirable and undesired publicity, and to protect all persons, whatsoever their position or station, from having matters which they may properly prefer to keep private, made public against their will.' In Carlisle v. Fawcett Publications, Inc., 20 Cal.Rptr. 405, 414, the court considering the right of recovery for publication of plaintiff's photograph and accompanying article said: 'It is clear that as current news occurs those involved in the happening may be named and discussed in newspapers * * * even though the process actually invades the privacy of the individual. If a householder is burglarized, or a pedestrian is held up and robbed in the street, or two automobiles collide at an intersection, news media may properly give an account of what happened even though the individual objects. The freedom of the press is constitutionally guaranteed, and the publication of daily news is an acceptable and necessary function in the life of the...