Bazemore v. Savannah Hospital
155 S.E. 194
Ga.
1930
Check Treatment

*1 (6) applicable impounding hogs running The ordinance was the of all town, others, large including, among hogs within limits of at by released their residences owners at outside the town. (c) charge that said “is ordinance void the reason that it violates one, one, three, paragraph article section of the constitution of State, Georgia, Georgia as set out in section 6359 of the Civil Code of 1910, life, deprived as follows: ‘No shall liberty, or ” law,’ property, except process of stating due without wherein it constitution, that provision violates of the is too indefinite to invoice Code, upon unconstitutionality of the ordinance. Civil § 6392: Goodson, 363) ; Wright, Pace v. E. Carswell v. (4) (66 905). (a!) charge Eor reason further like that said ordinance violates constitution, provisions of the fourteenth amendment to the Eederal life, any deprive any liberty, which declares: “nor shall State person of law, property process or without due deny any person nor within laws,” jurisdiction equal protection its of the is insufficient to in- ruling upon unconstitutionality voke a of the ordinance. (e) 1, 1, paragraph is not violative of article The ordinance section Georgia, per- the constitution of the which provides State that “No deprived prosecute shall of the son or defend his own cause State, both,” any person, by attorney, of the courts of this provides try rights “it no court in which to because sold, impounded sought try rights impound.” to be nor to 'to interlocutory hearing upon pleadings, 3. At the which were also read-as objection, hogs without evidence an the owner certain impounding enjoin municipality and the marshal of the town hogs selling plaintiff, running large certain at within the cor- limits, judge refusing interlocutory injunction. did err in an porate concur, ecccept Bussell, J., Judgment who All Justices O. affirmed. dissents. No. 1930. 7350. October Kelley, Fred plaintiff.

G. Kenyon, and Wheeler & for defendants. H. Edwards

G. et al. et v. SAVANNAH HOSPITAL al. BAZEMORE 1930. No. 7490. October *3 Tuten, for plaintiffs. Frederick A. Anderson, Gann, for and defendants. H. Richter Gann &

George Co., 122 In Pavesich v. New Ins. England Per Curiam. Life Ann. L. R. A. 106 Am. St. as follows: “The of a publication this court ruled Cas. consent, as a of an advertise- part without his person, picture business, is a ment, publisher’s purpose exploiting whose picture violation óf special entitles him to recover without proof and reproduced, un- that case the plaintiff sought damages damage.” In this case the picture. plain- own authorized publication the unauthorized picture tiffs seek the two infant child. The distinction between deceased of their out, but both' cases the peti- in the particulars pointed cases is to the The injury plaintiffs. petition and tions alleged the follow- other contains allegations, present among of and of said child “The photographing making ing: mortification, much humil- same was to the and publishing chagrin, iation, and and the acts and conducts of injury plaintiffs, insult insult are a serious and an inflicted injury plaintiffs defendants them, which' can not and time money repair eradicate, and same was done wantonly, maliciously, recklessly, Your petitioners. and without regard rights negligently, show, that, in of the conduct of defendants consequence petitioners circulation of said and pictures, making attacked; same, their name has been exposing good selling humiliated, sick, shocked, and made have been they greatly for their physician have been treatment obliged employ and medical the exact sum or sums bill, they incurred a physician’s time, the best of their to state at this but to knowledge are unable will be two hundred dollars.” approximately fifty and belief child. suit is not based on deceased injury According done the defendants were committed after allegations, wrongs of the child. Therefore in this case there is no question the death *4 if survival of a of action. The it ever existed or right, of the exists, after the death of the and is a now began of the on the part plaintiffs. v. Western Union 88 Ga. 763 Telegraph Chapman (15 R. A. 30 Am. “A 183), 17 L. St. it was held: E. per sent, to whom was addressed and inform telegraphic message son him the illness of his brother and him desperate ing requesting come, is entitled recover of the dam telegraph company not mental and to have pain suffering, alleged on account of ages him resulted the from failure of plaintiff to deliver company time, in message due from till delaying too late to delivery take the last train available for reaching brother before his death occurred.” But it was out in distinctly pointed that the petition no alleged damages plaintiff except for mental pain Therefore that case differs from the suffering. present. That case was considered court in by this at a decision arriving case, in where Pavesich this court said: “The effect of that de- cision is in contract, an action simply damages mental be pain recovered, when suffering no other have Mr. damages been sustained.- Justice in Lumpkin, his opinion, that where there distinctly recognizes has been an invasion from which the law presume flow, would damages to additional for pain and be suffering recovered.” might the court said: “It is well Again, settled that if any contract, or violated, trust been relation has right, damages are recoverable. are There cases which many sustain such' a doctrine.” Israel, In Jacobus v. Children Congregation 107 Ga. 518 73 Am. St. R. plaintiffs suit brought had damages, defendants alleging disinterred a wrongfully relative, dead near body and that had been same done court wantonly maliciously. This held that in such a suit awarded, be in “exemplary damages may which the estimating injury to the natural of the be feelings plaintiffs taken info may consideration.” That also was considered court the Pavesich and in the deciding opinion Mr. Justice Cobb “We call attention to the . . said: that damages may recovered be relative of a deceased person who is the owner of an easement of burial in lot, cemetery disinter- ment the dead and that if the body; injury has been wanton and malicious, or the result of and a reckless gross negligence disregard others, awarded, rights exemplary damages may which the natural injury estimating plaintiff feelings If may taken into consideration. for wounded feel- can be ings recovered such a case for the wanton removal of relative, bones of the deceased seem for bleaching it would reason that such allowed to be stronger to be damages ought had jealously when those matters which the deceased recovered lifetime, and his guarded public during portrait, *5 are made public from protected gaze, public prop was likewise insisted, however, by his death.” It defendants after erty in. it “In case was Murray this case that in Pavesich said:. Co., 28 N. Y. 271 Misc. a case decided Supp. 36], Lithographic [8 of New it was City County, the court of common York by pleas enjoin publication not sue of held that a This child, infant or for caused thereby. damages portrait correct; for there was any was if undoubtedly decision the cause action was sue for a violation the right privacy, words, child, in In other defendants in the and not the parent.” this court the view of adopted insist in the case Pavesich enjoin can not sue to the publi- the New York court that a person of his infant child or for caused there- damages cation a portrait is in the child and not in the parent. because the action by, effect, be- This could not have made a to that binding ruling court The in the Pavesich case. cause no such was involved question in the was entirely remark Mr. Justice Cobb aside dictum, involved, obiter clearly 'the and was because issue was not to recover for the plaintiff undertaking Pavesich case else, one was of some but publication unauthorized recover the unauthorized of his own seeking difference between the Murray But there a wide picture. court, New and the case. present decided York by un- to recover Murray parent case sought of his infant of the portrait living authorized of action was child. and the held the right living court when were the child was dead the unauthorized acts In this case action not be in the and the could committed, Of the decisions of courts of another but course parents. court, this but are merely persuasive State are not controlling case was not decided and moreover the authority; New The petition resort of the State of York. court of last of a deceased child for parents general special because of injunction and for plaintiffs, alleged act, set forth a of action. Brents v. Compare Morgan, tortious cause A 961). 55 A. L. R. will Ky. (299 petition W. whole, any if it sets cause of not be as a out a dismissed erred in sustaining It that the court relief follows prayed. case. court expressly demurrer and the general dismissing demurrer, and therefore no on the special not pass did Hos- reference to the Savannah liability thereon. With made 887). Hospital, Savannah see Morton v. pital Beck, J., concur P. except All the Justices reversed. Judgment Hill, J., *6 and who dissent. are J., in the but concur J., judgment, C. Hines,

Russell, a cause of action if would set out that the petition opinion died. child had not to recover and for J., In an action dissenting. Hill, of a father etc., privacy, a violation of the right for injunction, a from a hospital, pho can not recover and mother suing jointly for selling, sued jointly, making, and a newspaper, tographer, malformed a or day their infant of publishing photographs treatment. The for old, hospital who was placed two of and recover a violation have a to sue if would living, right not in its of would the cause of but privacy, right Co., 190, 209 122 Ga. Ins. Pavesich v. New England parents. Life Sorrels 271 Co., Supp. (supra); Lith. 28 N. Y. v. (supra); Matthews, (N. S.) E. 13 L. R. A. v. Ga. (58 Railroad, 503; v. Chapman Allen 404); 12 Ann. v. Cas. Co. Jack Co., Ry. 88 Ga. 763 So. (supra); Western Union Tel. 1196 et son, 21 R. C. L. seq. (91 (2) not err in sus did the court below of the writer the opinion the case. dismissing demurrer and taining general The of privacy.” of “the right involves the This case question Eng Pavesich v. New modern. is right purely law respecting What is this right? L. 1196. 21 R. C. supra; land Ins. Life alone; a of to be let right is the right “The of privacy right A more specific, unwarranted publicity. to be free live without one’s having accurate, is the right but less definition relative, made statue, public against that of a name, or or least at right, “The assertion of 21 R. L. 1196. his will.” C. have been made for concerned, seems to are far as cases reported so until 1905 that a court of ivas not in 1890. But it the first time Prior its violation. and redressed this right last resort recognized and in cases, country England, in this both adjudicated to 1890 the were not of privacy, have involved a right said to which might founded on a supposed but were of such right, based on the existence contract, like, and a or the or breach of trust of property, right to a privacy, independent claim or contrac right nature, had, time, or some similar right tual that right, up to been terms decision. any never Since that time recognized have been few cases in very reported there which the has been right vindicated, trend authority seems to be recognized declares, that, it.” The same author Ib. C. against L.) decisions of although courts last resort which reported numerous, is are involved it is that right privacy evident judicial trend of view this is general against violation which there legal legal remedy. courts have majority these declined the inter recognize an ference with one’s as in a injury sense. The legal on which this view is based reason law has not pro vided for a or maintain possess without disturbance any condition of and that to enforce particular feeling, such at this time would do violence to settled principles by been have The law can public guided. not undertake long *7 it is remedy sentimental not concerned injury with' the feelings as the of a discomfort and are connected person, except suffering the with of “In possession enjoyment property. Id. some relief jurisdictions only is where granted some equitable property has been or some loss invaded right pecuniary suffered. con rule, of this at least with to respect the sequence publication of another’s the courts have picture, adopted the that the theory right It of has been said property right. a that a has person in the same the use of his face for cómmercial purposes compositions, that, as in his if his literary face has value, a tha is his until use exclusively value the of the same be granted away public.” the length We have at some from text a based on quoted decisions other jurisdictions, from and it that other apparent jurisdictions question are divided this to recover for right a viola the But it tion of' of will noted right privacy. that there are where right no cases mentioned the recover is not in the person words, In other the it sustaining injury. personal right. We have found like the no where exactly present, the parents of an infant child few days old have sued recover for a viola Stokes, the unless it be tion of of right privacy, Douglas 149 Ky. v. 1914B, S. W. 42 L. R. A. Ann. (N. S.) Cas. where it is evident the cause of action arose from the of contract breach the made between the parents the photog- rapher, and to recover in their they sought But, own right. what- ever the rule be in other may jurisdictions, this court has given its down in endorsement to rule laid the case of Murray Lith. Co., where it was that a supra, held person not sue to enjoin of portrait his infant or for damages Cobb, caused in a thereby. Judge well-considered and very able in rendered England Pavesich v. New Ins. supra, Life said, “This referring supra: decision was un Murray correct; for, if there was doubtedly to sue any right for viola tion of the of the cause of action was in privacy, the child not in And parents.” court, there is decision no of this far aware, so as we are which' holds to the contrary. It wrasfurther said case: Murray “Two insuperable objections arise to first, preclude any recovery; as conjuncta personae, merely, plain tiff has no of action for committed wrong against per another, son unauthorized assuming a por trait the latter to be an unlawful invasion of his enjoyment personal privacy; secondly, parent, as his only right action, committed, out of growing wrongs against child, is for loss of services recovery and the to which he has been expenses subjected in are, cure elements of effecting injury, action; obviously wanting and even an loss of cure, services and no expenses attending recovery can had mental sensibilities of the court has outraged parent.” This “ that the said made in the case was cor undoubtedly rect,” and may it be added it is in with accord other decisions Roberson, courts of other And highest jurisdictions. see an *8 infant, litem, by Bell, her ad v. Rochester Margaret guardian Fold Co., 442, 478, Box 171 N. Y. 538 ing (64 N. E. A. L. R. St. R. 21 R. L. 828); Am. C. and cit. In Allen v. § Co., held this court that “a can not maintain parent an action for on account of the homicide of his infant damages who time death incapable child at the of his was him rendering any services.” It will be recalled that in the instant case the infant see, was a old. only day child two And to the same effect as case, Matthews, Allen Sorrels v. this court said: (supra), v. W. U. Tel. Chapman (supra). to his “Thus, physical injury where father sues for a a grievous his parental can not recover for the laceration of minor he services, even in with the loss conjunction damages feelings, heartrend his lie severe and suffering necessarily mental though Jackson, “The court that fact In So. this held Ry. supra, ing.” her and became child that a mother witnessed mangling shock therefrom would suffered a nervous frightened severe her number of authorities). not entitle to recover” Georgia (citing be added that it was after may only thorough painstaking It of the authorities bearing citation investigation case, Cobb in the Pavesich quoting that stated Judge enjoin “that sue to not person of his or for caused infant portrait . . Even if the undoubtedly language correct.” thereby, obiter, it by was approved Cobb in the Pavesich case was Judge bench, authority, in accord with the outside weight entire and is similar decided court. and of cases insisted, that, have the may plaintiffs But it while may prevent in a like the present, to recover use of child’s picture and restrain equitable If a case like the present of trade. it purposes thought malformed child should be of one’s should had to the legislative answer is recourse enjoined, For, as was judicial. and not to the well branch of government, case, “the have courts no said Cobb Pavesich au- by Judge I no matter how great grievance.” thority give remedy, Beck state that he Mr. Justice am authorized by Presiding in the above concurs dissent. BATEMAN-FREEMAN COMPANY.

SOLOMON et al. v. 3, 1930. No. October 7342.