Werner v. Times-Mirror Co.

• Decision Date: 15 June 1961
• Docket Number: TIMES-MIRROR
• Citation: 193 Cal.App.2d 111,14 Cal.Rptr. 208
• Parties: Erwin P. WERNER, Plaintiff and Appellant, v.COMPANY, a corporation, Defendant and Respondent. Civ. 24813.
• Court: California Court of Appeals Court of Appeals

Page 208

14 Cal.Rptr. 208

193 Cal.App.2d 111

Erwin P. WERNER, Plaintiff and Appellant, v. TIMES-MIRROR COMPANY, a corporation, Defendant and Respondent.

Civ. 24813.

District Court of Appeal, Second District, Division 3, California.

June 15, 1961.

Hearing Denied Aug. 9, 1961.

Charles Murstein, Los Angeles, for appellant.

Cosgrove, Cramer, Diether & Rindge, Los Angeles, for respondent.

FORD, Justice.

The plaintiff has appealed from a judgment of dismissal entered pursuant to section 581, subdivision 3, of the Code of Civil Procedure upon his failure to file a second amended complaint within the time allowed by the court after a general demurrer to his first amended complaint had been sustained.

The cause of action pleaded is predicated upon the theory that there had been an invasion of the plaintiff's right of privacy. Upon the hearing of a motion to dismiss the action because no bond had been filed as required in an action for libel under the provisions of section 830 of the Code of Civil Procedure, the plaintiff represented to the court that he was not seeking to maintain an action for libel; the motion was denied. The present case arose out of the publication in the Los Angeles Times on December 19, 1958, of an article which is set forth in the margin of this opinion. ¹

The allegations of the amended complaint are in substance as follows: 1. The plaintiff was, and now is, a duly licensed attorney at law; he is also known by his nickname, to wit, 'Pete Werner'; from 1929 to 1933 he was the duly elected, qualified and acting city attorney of the city of Los Angeles. 2. The defendant was, and now is, the owner and publisher of the Los Angeles Times, a daily newspaper of large and general circulation. 3. On or about December 17, 1958, the plaintiff and his fiancee applied to the County Clerk of Orange County for a marriage license; on or about December 18, 1958, the defendant requested information from the plaintiff concerning his intended marriage; the plaintiff refused to give such information and explained that his fiancee was a Grand Royal Matron of the Order of the Amaranth of the State of California and desired their plans to remain secret until she set a date for the marriage; contrary to such request, the article concerning his application for the marriage license was published (being the article set forth in footnote 1 of this opinion). 4. Such publication of former events in his life caused him 'deep himiliation, emotional distress, anxiety and embarrassment among plaintiff's many friends and acquaintances, as well as members of the Bench and Bar and various fraternal organizations to which plaintiff belongs, all to his damage in the amount of $400,000.00.' 5. The article was untrue in that it stated that the plaintiff was a political storm center during the Mayor Shaw era 'of the 1930s,' whereas in fact he was not an official of the city of Los Angeles during the administration of Mayor Shaw and was not involved in any of the scandals or 'in any political storm center' during that administration; such statement 'was intended to convey and did convey to the readers of the Los Angeles Times, that plaintiff was involved in and was a part of scandals concerning the regime or administration of Mayor Frank Shaw.' 6. The article was untrue in stating that the plaintiff's first wife 'won the sobriquet of Queen Helen, in the roaring 20s for her domination of Los Angeles politics, inasmuch as any such sobriquet, if any, is one which existed only as it was used by the defendant, and was used by the defendant solely for the purpose of humiliating and embarrassing plaintiff' and of 'bringing derision' toward him. 7. The defendant used the word 'mastermind' in the article, with respect to the part of plaintiff's first wife in the plaintiff's rise to political prominence, 'for the purpose of conveying to its readers, and it did convey to its readers a derogatory meaning and was published for the purpose of further embarrassing and humiliating plaintiff.' 8. The article stated that the plaintiff's first wife managed his campaign for the office of city attorney after their marriage, which was untrue; she never managed such campaign. 9. The article contained the statement that: 'The Werners were rocked by a municipal scandal in the late 1930s involving alleged bribery in connection with Los Angeles Liquor licensing;' that statement was untrue 'in that plaintiff was not an official of the City of Los Angeles, and the alleged bribery in connection with Los Angeles liquor licensing [sic], both plaintiff and his wife were acquitted of any such charges'; the statement 'was intended to convey and did convey to the readers * * * that plaintiff was involved in and was a part of a municipal scandal.' 10. The article was further untrue in that it stated that 'Werner was vindicated after four years of litigation,' whereas in fact the plaintiff and his wife, Helen, were 'found not guilty of the said liquor licensing charge, by a verdict of not guilty by a jury approximately six months after the charges' were filed. 11. The article 'unfairly, improperly and incorrectly stated that Helen Werner was convicted of grand theft and spent ten months in jail, without publishing the fact that said Helen Werner was vindicated and that the verdict of guilty was set aside by motion of the District Attorney of Los Angeles, county, California,' as shown by the exhibit attached; ² such publication was for the purpose of humiliating and embarrassing the plaintiff. 12. 'The said story was printed and published by the defendant willfully and maliciously, and by reason thereof plaintiff requests the allowance of exemplary damages. * * *'

The question presented on this appeal is whether a cause of action has been stated; in the determination of that matter the allegations of the appellant's complaint must be taken as being true. Gill v. Curtis Publishing Co., 38 Cal.2d 273, 275, 239 P.2d 630.

This court said in Fairfield v. American Photocopy Equipment Co., 138 Cal.App.2d 82, at pages 86-87, 291 P.2d 194 at page 197: 'The gist of the cause of action in a privacy case is not injury to the character or reputation, but a direct wrong of a personal character resulting in injury to the feelings without regard to any effect which the publication may have on the property, business, pecuniary interest, or the standing of the individual in the community. [Citation.] The right of privacy concerns one's own peace of mind, while the right of freedom from defamation concerns primarily one's reputation. [Citations.] The injury is mental and subjective. It impairs the mental peace and comfort of the person and may cause suffering much more acute than that caused by a bodily injury.' See also Gill v. Curtis Publishing Co., supra, 38 Cal.2d 273, 276, 239 P.2d 630; Kelly v. Johnson Publishing Co., 160 Cal.App.2d 718, 721, 325 P.2d 659. The right of privacy is a purely personal one. It cannot be asserted by anyone other than the particular person whose privacy is invaded. James v. Screen Gems, Inc., 174 Cal.App.2d 650, 653, 344 P.2d 799; Kelly v. Johnson Publishing Co., supra, 160 Cal.App.2d 718, 721, 325 P.2d 659; Metter v. Los Angeles Examiner, 35 Cal.App.2d 304, 310, 95 P.2d 491.

While ordinarily protection against the invasion of privacy is directed toward the prevention of unwarranted publication of intimate details of one's private life (Coverstone v. Davies, 38 Cal.2d 315, 322-323, 239 P.2d 876), some matters are newsworthy events of such public or general interest that the press is privileged to report them as news. The issuance of a marriage license is such an event even though the parties involved may desire to keep information thereof from the public. See Aquino v. Bulletin Co., 190 Pa.Super. 528, 154 A.2d 422, 427. Guidance in ascertaining the limits of privacy is found in Gill v. Hearst Publishing Co., 40 Cal.2d 224, at page 228, 253 P.2d 441, at page 443, wherein the Supreme Court said: 'The right 'to be let alone' and to be protected from undesired publicity is not absolute but must be balanced against the public interest in the dissemination of news and information consistent with the democratic processes under the constitutional guarantees of freedom of speech and of the press. [Citations.] The right of privacy may not be extended to prohibit any publication of matter which may be of public or general interest, but rather the 'general object in view is to protect the privacy of private life, and to whatever degree and in whatever connection a man's life has ceased to be private, before the publication under consideration has been made, to that extent the protection is to be withdrawn.' [Citations.] Moreover, the right of privacy is determined by the norm of the ordinary man; that is to say, the alleged objectionable publication must appear offensive in the light of 'ordinary sensibilities."

A person may, by his own activities or by the force of circumstances, become a public personage and thereby relinquish a part of his right of privacy to the extent that the public has a legitimate interest in his doings, affairs, or character. Smith v. National Broadcasting Co., 138 Cal.App.2d 807, 812, 292 P.2d 600; Cohen v. Marx, 94 Cal.App.2d 704, 705, 211 P.2d 320; Sidis v. F-R Pub. Corporation, 2 Cir., 113 F.2d 806-809, 138 A.L.R. 15. Since there can be no privacy with respect to a matter which is already public, ordinarily matters embodied in public records are not within the scope of protection. As said in Melvin v. Reid, 112 Cal.App. 285, at pages 290-291, 297 P. 91, at page 93: 'The very fact that they were contained in a public record is sufficient to negative the idea that their publication was a violation of a right of privacy. When the incidents of a life are so public as to be spread upon a public record they come within the knowledge and into the possession of the public and cease to be private.' See also Smith v. National...