*1 “. . . jury, to determine from all of the evidence whether or not the facts BITSIE, by her father and next friend,
assumed proved.” Oscar Plaintiffs- 2.1, U.J.I. Appellants, Hypothetical Question. State Klas See v. ner, 474, 479, 489, 145 P. WALSTON, James B. the United Cerebral Am.Ann.Cas.1917D, (1914). Palsy Association Publish Furthermore, question ing could not Company, Defendants-Appellees. leave an impression erroneous with the No. 1108. jury that performed defendant had an un- Appeals Court of of New Mexico. necessary operation because the question July 1973. referred to a medical “recommendation” Sept. 7, Certiorari Denied doctor, “unnecessary not an operation.” approve the rule that the form and
content hypothetical of a question rests
the discretion of the trial if the trial
court believes the question answer will
aid jury. disputed Where there are issues,
factual plaintiff is entitled to select
the evidence on the facts favorable to his
case. The dispute resolution of the factual
is left to jury. Canney v. Travelers Co.,
Insurance
110 N.H.
based on facts in but it is al- court,
lowed it would be a clear
abuse of Araujo discretion. Technical
Casting 100 R.I. A.2d know rule no which demands include all facts which
might be opinion requested. relevant plaintiff may opinion seek the witness’ any combination of facts within the
tendency of sufficiency evidence.
of the data as well the soundness
opinion can properly be tested on cross-ex- Marsigli
amination. City Estate v. Granite Sales,
Auto 124 Vt. A.2d 799 present
In the defendant
not seek cross-examination of the doctor hypothetical question. answered the
The hypothetical proper, question was
and the trial court did his not abuse discre-
tion. *2 Robins, Chavez, L. Melvin
Lorenzo A. Strand, plaintiffs- Albuquerque, for Leof appellants. Dickason, Dixon, Rodey, S.
William Robb, Sloan, Albuquerque, for de- Akin & fendant-appellee B. Walston. James Dickson, Branch, Branch, Turner W. Wilson, Albuquerque, for de- Dubois & Pal- The United fendant-appellee sy Assn. Paulantis, Lan- Monroe, Johnson, J. J. Monroe, for defend- Albuquerque,
phere &
Publishing Co.
ant-appellee Journal
OPINION
WOOD,
Judge.
Chief
for de-
directed
trial court
for invasion
claim
plaintiffs’
fendants on
trial,
judg-
privacy. Prior
defendants
granted to
ment had
appeal
This
libel.
claim
plaintiffs’
rulings.
both
correctness
challenges the
At the
Fair
State
took
propriation
Walston
placing
light
and the
ain
false
a photograph
of La Verne
a Navajo —are
ways
may
two
which the tort
child, then approximately 18
Prosser,
months old.
supra,
committed.
at 804 and
The photograph was taken with the con-
proceed
assumption
on the
father,
sent of her
Oscar Bitsie. Walston
each of the
allege
claims
the tort of inva-
*3
prepared a sketch of La Verne and sent it
sion
privacy
of
in New Mexico.
February,
father
in
present
three defendants
various
“The Arts”
section of the
why they
contentions
are not liable
Sunday,
27, 1971,
on
carried
for an
of
in
privacy
invasion
this case.
June
the headline:
“Cards by Local Artists to
consider
the contention common to
Benefit
Palsy
Fund.” The article
each of the
That
defendants.
contention is
states:
designed
“Note cards
by five local
liability
concerned with conduct for which
being
artists are
sold
the Women’s
imposed
and how chat conduct is mea-
Committee of
United Cerebral
sured.
help
pre-school
finance a
for children af-
IV, Restatement of
Torts
867
flicted with
palsy.”
The remain-
unreasonably
“A
states:
der of the article
designs,
identifies six
seriously interferes with another’s interest
price
states
of the cards and where the
in
having
his affairs known to others
cards
purchased.
could be
One of the
or his likeness
the public
exhibited to
“
**
*
designs
identified
is:
‘La Verne
liable to the
(d)
other.” Comment
to 867
Bitsie, Navajo
by Walston, print-
Girl’
Jim
liability.
discusses conditions
states:
It
”
**
*
“
paper.
ed on tan
**
* liability
only if
exists
the de-
Six photographs appear
the arti-
below
fendant’s
such
that he should
conduct
cle. The photographs
designs
are of the
have realized that it would be offensive to
”
* * *
identified in the
photograph
article. One
persons
sensibilities.
is of the sketch
La
prepared by
Verne
say:
supra, goes
Comment
on
(d),
“
Walston.
* *
*
only
where
intrusion
gone beyond
decency
the limits of
Plaintiffs’
suit for
privacy
invasion of
”
*
**
liability accrues.
It also states:
and libel is
newspaper
based
article
“* * *
only
the defendant
when
photograph.
plaintiff
should know that
would be
Invasion
privacy.
justified
feeling
seriously
in
hurt
conduct
that a
of action
cause
exists.
recognizes
pri-
New Mexico
invasion of
»
* * *
vacy damages may
a tort for which
Miller,
Apodaca
recovered.
79 N.M.
cases,
following
In some of the
160,
«59
ruling,
Our
of no
First
invasion of
P.2d 178
Perea v.
State
law,
applies
Bank,
a matter of
(Ct.App.
no evidence HENDLEY, as to what J., beliefs customs concurs. were covered in those articles. The evi SUTIN, J., dissents. dence as previously published to articles does not sustain an inference that SUTIN, Judge (dissenting). newspaper should have known the story in this case be offensive. I dissent. Sometimes, cases, trial sensitive Libel. judges grant directed and summa- verdicts complaint claim of libel in the Sometimes, ry judgments as fact finders. article, that together picture with the appellate judges difficult affirm. “ * ** name, identifying by La Verne explain problem people, and to Indian plaintiff inferred that was afflicted with public generally, they not are palsy, cerebral disabling a disease.” serious with attitudes legal familiar the variant “ * * * Also, that pub- circulation judges with which are An ana- endowed. implying plaintiff lication that a vic- was lytical study proves legal that attitudes are tim of palsy, was false and defa- changes in seasons. variant as ” * * * matory. majority In this determined A defamatory meaning as a mat- “ordinary will what sensibilities” are given be law; cannot, words meaning unless such a ter of as a matter “We their plain and import. Language law, obvious equate persons an hold- offense will receive an interpretation Navajo innocent of- ing with an [traditional beliefs] fairly susceptible sensibilities”; where an inter such fense to pretation. Melnick, Reed that the evidence does not sustain an “in- help Palsy to Cerebral established, United mittee of ference”; the facts children therefrom, preschool may be to be drawn afflicted inferences finance palsy. with cerebral closeted. “La . . . are included DESIGNS of review should judges and courts Trial Bitsie, Navajo Wal- Girl” play jury allow frightened to Jim not be . . . paper; ston, printed on tan Arti- of fact. issues determine its role —to II, Mexico Con- 12 of New cle Section at are available THE CARDS part: provides stitution Palsy at office Cerebral United .... NE Menaul trial all be secured to existed shall at heretofore Later, are to be offered cards remain inviolate. at the booth the United [Emphasis Fair. added] State dis- that this inference drawn Let no ' victory for desire sent indicates be- to Oscar was offensive This article duty is to deter- primary Our plaintiffs. child with cerebral it associated his cause jury, rather than mine whether in full health. she was he knew when court, Indians, a verdict. render should the ar- Navajo and to the To him going to the child was ticle meant on The directed in life. on later of bad luck some kind erroneous. cases of or three two Verne did have plaintiffs favorable The facts most of 1971. pneumonia the winter are: 20,000 traditional than There are more Fair, State at the New Mexico belief their Navajos in New Mexico. years of one and one-half La Verne by the picture is used person’s if Village the fair- age, Indian ail- a serious publisher in connection *6 Walston, by accompanied his grounds. actually from ment, suffer person the will father, wife, his told Oscar harm the disease because Verne, name, cute; her child that was on the child. wished Mrs. first the same as Walston’s was testimony. However, additional there was a name, permission for take and asked you whenever that testified witness One child,- permission of photograph person cam- fund polio or retarded a see given. the father did not tell was Walston children, a you see pictures of paign with picture. be made of the what use would or crippled in that disease who is child prepared a February, Walston Therefore, in this handicap. shown with her and mailed it to of La Verne sketch assume said, naturally you could she in degree has B.A. histo- Oscar father. helping cerebral Bitsie was that La Verne degree in ry, working on a master’s had it. palsy because she guidance counseling, and for seven circulated, Albuquerque Journal by employed he years, has been Sunday edi- statewide, 100,000copies County Systems Gallup-McKinley School in 1,500 were circulated than tion. More as attendance counselor. presence of Nava- Gallup. knew of the 27, 1971, Sunday in the edition On Gallup. If jo June in Indians Albuquerque Journal, the Walston of the there believed staff any members of the appeared in sketch the Fine Arts section the sensi- offend something that would was entitled, by an article “Cards Local with readers, brought it bilities to Benefit Cerebral Fund.” Artists managing of the editor or attention “as The sketch identified ‘La Verne policy it had no But editor decision. reads by Bitsie’ The article Walston”. of matters publication Jim reference part: ran a se- religious cultural content. or Indian discussing various designed art- by cards five local ries of articles Note Val- up and the Rio Grande being pueblos are down ists sold Women’s Com-
g01
ley
in which it
the clans within
described
tion
defendants is offensive to a reason
pueblo,
religious
person
their
beliefs and how able
for the
everyday
it affected
life of these Indian
News,
decide.
Daily
Inc.,
Harms v. Miami
people. During
previous
six
seven
;
During the trial of the the court of the the sensibilities fended deprive (1) ruling ruled: That the law person, opposed does to the Court recovery merely wrongs point child of for done as to that ? a matter law young appreciate because it is too privacy. invasion of its Whether Gentlemen, you asking aren’t sensibilities of the jury the determi- take from Court to offended, jury was a not a nation of whether would invade ,(3)
matter of law the court. sensibility ordinary person? Be- instructed as was advised it would be *8 “ cause, your sugges- if in fact I follow * * * follow, appropriate to the to law tion, every every any time testi- after * * *" heard the we have all evidence proffered, objection mony would scope not within the be made that thereafter, Shortly plaintiff rested. Ex- test, man Court arguments tensive were The trial made. it, would exclude misgivings” “with some directed upon be never called never—would (1) damages The suffered pass upon citizen what by plaintiff speculative for were not would would believe. present and The reluctance of future. Navajo witnesses discuss the cultural or aspect
traditional
of Navajo
you
saying
life made it
not
I think what
are
that
issue,
impossible
general public
injected
for the
or the
we have
a false
we
but
issue,
injected only
perhaps
have
one
fensive to
of ordinary sensibili-
regard
merit
issues with
to the ordi-
ties.”
Best Medium
Varnish v.
Co.,
nary
going
supra.
sensibilities test.
I’m
* *
objection
overrule the
*.
say
is erroneous to
traditional
agree
I
with the trial court on the above Navajo
people
Indians are not
“ordi-
disagree
issue.
with the trial court on nary sensibilities.” The same could then
damages. Speculative
issue of
dam-
Irish-Americans,
said of
Mexican-
ages was the basis of the directed verdict. Americans, Chinese-Americans,
peo-
black
necessary
special
Catholics,
“It is not
damages ple,
Protestants and
On
Jews.
should have
Irish-Americans, Murray
occurred from the violation of
see
York
v. New
the right
Mag. Co.,
in order to entitle the
N.Y.2d
N.Y.S.2d
aggrieved person
Here,
to recover.”
N.E.2d 256
under the
C.J.S.
Right
Privacy
7a;
statutory
rule,
Reed
picture
v. Real De-
New York
illus-
tective
trating
Pub.
63 Ariz.
an article on a
All of the foregoing testimony is on the palsy fund drive. basis Navajo of “traditional” belief. directing trial court erred in a ver- The evidence then is that newspa- on privacy. dict per story was offensive to traditional Navajos. court erred in granting summary an offense al [******] Navajo cannot, beliefs] aas matter of persons holding sensibilities. with an law, offense [tradition- equate findings “must know Unfortunately, we never summary judgment or reasons therefor. Both judgment on libel. upon what grounds in the absence of know the basis parties judg- granted ment properly order to was testimony There in addition to that present the controversial issue appel- which related to “traditional” Navajo be- late Wilson v. court.” Board lief. It was sufficient to create an issue Realtors, of fact “ordinary issue of sensibili- judgment stated no Otherwise, ties.” plaintiff we hold must any findings. reasons therefor nor made prove by they witnesses who claim “ordinary sensibilities”, they “of- opinion The majority relies on two alle- fended” article with La gations plaintiffs’ complaint and then picture. Verne’s story the newspaper concludes does impute that La pal- Verne had cerebral “Ordinary “ordinary sensibilities” like se; sy; per story that the not a libel term; care” is relative it depends upon pled, that extrinsic facts were not there- Employers the circumstances. Casualty fore, no claim for existed for relief libel. Company Moyston, P. *9 2d wrong 929 this (Ct.App.1969). com It is court to rule a posed people matter newspaper story determine from the of law that impute circumstances of case whether does not to La “ordinary impute “suggests article offended ascribing Verne. To sensibil Journal ities.” say something brings way “We cannot as a matter of law discredit article would not be of- accusation or blame.” It is [Journal] 664 P.2d 668 beyond a reason- I convinced
fact. am not Plaintiff-Appellee, Mexico, relied on de- that the matters able doubt STATE of New v. support their motion for fendants Defendant-Appellant. OLIVE, sup- D. judgment sufficient William Brock, No. 1103. port their burden. Goodman P.2d 676 N.M. Appeals Mexico. Court of of New Sept. 12, 1973. dismiss court wrong for this It Rehearing Denied Oct. 1973. complaint for failure state plaintiffs’ plaintiffs This denies for relief. claim Denied Nov. Certiorari complaint, if neces- to amend a claim for relief. sary, to state complaint plaintiffs’ dismiss not extrinsic facts. failure to state Upon what summary judgment.
granted
basis, do not know. we for a short rule calls procedural
Our gives claim which
plain statement thereof. fair notice Section
the defendant (Repl.Vol. (2), (8) (a)
21-1-1 N.M.S.A.1953 Stull, F.Supp. 568
4); United States v. Gyp
(D.C.1952); Turner v. United States (D.C.1951).
sum
should prove no
beyond plaintiff can doubt that support of his claim. Con-
set of facts 99, 2 Gibson,
ley 355 U.S. S.Ct.
L.Ed.2d 80 supra, should (8) (a) (2), 21-1-1
Section 21-4-8, together N.M.S.A.
be read with § (Repl.Vol. and slander. 4) on libel necessary to provides it not
This section complaint any extrinsic facts. in the
state generally state
It is sufficient
defamatory published matter was concern only case plaintiffs. The
ing the
explained this section Dillard v. Shat
tuck, adverse, explanation
This but occurred long
prior procedural our rule and is no point.
er on this effective Melnick,
Reed v. a li- only involved dismissal summary judgment. complaint,
bel support nothing in record
find
summary judgment.