JOSEPH H. BREMMER et ux., appellants, v. JOURNAL-TRIBUNE PUBLISHING COMPANY, appellee.
No. 48768.
Supreme Court of Iowa
MAY 9, 1956.
(Reported in 76 N.W.2d 762)
If we were to adjudge this controversy upon the case as made by Cross’ motion to dismiss, it is clear from the discussion in Division I that we should reverse. But the court did not place its ruling on any grounds set up in the motion. It said that it considered the matter as though it were ruling upon the original motion to bring in a third-party defendant; and this part of its ruling is unchallenged here. It then proceeded to find that in the exercise of a fair discretion the motion should be denied. Considering that it was ruling upon the motion to bring in Cross as a third party, it had the right to exercise its discretion even though such motion was resisted upon erroneous grounds, or was not resisted at all.
For the reasons set out in Division II we affirm the ruling of the trial court.—Affirmed.
All JUSTICES concur.
OLIVER, J.—This is an action for damages brought by the parents of eight-year-old Jimmy Bremmer, deceased, for invasion of their right of privacy. The petition alleges plaintiffs’ son Jimmy disappeared from his Sioux City home and remained missing for approximately one month until September 29, 1954, when his mutilated and decomposed body was discovered in a field near Sioux City; that on said date the evening edition of defendant-newspaper carried on the front page a large picture of the site where the body was found; “that toward the bottom center of the photograph the mutilated and decomposed body of Jimmy Bremmer lay exposed; that because the picture of the body was exposed to the public view and more particularly to the view of the parents, Mr. and Mrs. Joseph Bremmer, the Constitutional right of privacy of Mr. and Mrs. Joseph Bremmer was invaded; further that because of the publication of the aforementioned photograph by the Journal-Tribune Publishing Company, the parents of Jimmy Bremmer, Mr. and Mrs. Joseph Bremmer, have suffered untold mental anguish and humiliation and will continue to do so in the future; that by reason of such suffering and humiliation, Mr. and Mrs. Joseph Bremmer have been damaged in the sum of Thirty-five Thousand Dollars ($35,000).” Judgment for that amount is prayed.
In Division I of its answer, defendant denied any rights of plaintiffs were violated or invaded. Divisions II, III and IV alleged the circumstances of the disappearance and discovery of Jimmy Bremmer were matters of great public interest and the pictures and news items published by defendant were privileged and plaintiffs suffered no legal wrong; that plaintiffs solicited the widest possible publicity and waived and consented to the same, including the pictures complained of; and that there was no such right of privacy as claimed by plaintiffs.
Plaintiffs moved to strike Divisions II, III and IV as conclusions, improper in substance, meaningless, incompetent, not based on facts pleaded, and matters at best evidentiary. The motion to strike was overruled. Plaintiffs replied, denying each
The trial court sustained the motion to dismiss. From the judgment rendered against them thereon, plaintiffs have appealed.
I. Some procedural aspects of the case will be first considered. Defendant‘s contention the order overruling plaintiffs’ motion to strike had the effect of an order under
However, the trial court did not determine defendant‘s contention the order overruling the motion to strike became the law of the case. The order sustaining the motion to dismiss shows the court considered “that the present pleading attacks the validity of the petition, and particularly whether or not any cause of action is stated therein. * * * The court is of the opinion that said petition does not state a cause of action against the defendant.” Hence, it appears the distinguished trial court treated the motion to dismiss as a motion for judgment on the pleadings under
II. 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, section 1; 41 Am. Jur., Privacy, section 2; Prosser‘s Handbook of the law of Torts, 2nd Ed., 1955, chapter 20, Privacy. Violation of the right of privacy is a tort.
Defendant points out that neither the statutes of Iowa nor the decisions of this court recognizes the right of privacy. Hence, it contends no action for the violation of such right may be maintained in Iowa. With this contention we do not agree.
Prior to 1890 no English or American court had ever granted relief expressly based upon the invasion of such a right. In that year attention was directed to it by an article by Samuel D. Warren and Louis D. Brandeis in 4 Harvard Law Review 193, entitled, “The Right to Privacy.” Later the doctrine was advocated in numerous articles by other writers and statutes relating to it were adopted in several states. The first decision by the highest appellate court of a state, recognizing the doctrine, was Pavesich v. New England Life Ins. Co., 1905, 122 Ga. 190, 50 S. E. 68, 69 L. R. A. 101, 106 Am. St. Rep. 104, 2 Ann. Cas. 561. That decision has been followed by many courts of this country. Now the courts of approximately twenty states recognize the right of privacy. In three other states it is limited by statute and in only four do the courts reject it. A footnote to Hazlitt v. Fawcett Publications, Inc., 1953, D. C. Conn., 116 F. Supp. 538, 542, 543, lists these to 1953. There are annotations on the right of privacy in 138 A. L. R. 22, 168 A. L. R. 446, and in 14 A.L.R.2d 750. See also The Right of Privacy, Louis Nizer, 39 Michigan Law Review 526.
Section 867, Restatement of the Law, Torts, entitled, “Interference with Privacy“, states: “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.”
III. The ultimate question here is whether plaintiffs’ pleading alleged facts sufficient to constitute an unwarranted invasion of their right of privacy. It is conceded the picture of the portion of the field with the body thereon was part of a current news item published in a newspaper. In argument plaintiffs refer to statements in “accompanying articles” in the newspaper. Obviously, the finding of the body of the local boy who had been missing for a month was a top-rank news story. Plaintiffs concede, “it may be true that the public was interested in the fact that the missing Bremmer boy was found * * *” A general rule set out in the comment to section 867, Restatement of the Law, Torts, page 400, and repeated in many decisions is: “One who unwillingly comes into the public eye * * * is subject to the same limitations upon his right to be let alone. Community custom achieves the same result with reference to one * * * or the subject of a striking catastrophe. Both groups of persons are the objects of legitimate public interest during a period of time after their conduct or misfortune has brought them to the public attention * * *, they are subject to the privileges which publishers have to satisfy the curiosity of the public as to their leaders, heroes, villains and victims.”
77 C. J. S., Right of Privacy, section 2, page 399, states in boldface: “* * * the dissemination of news or news events does not generally constitute an invasion of the right [of privacy].”
Hazlitt v. Fawcett Publications, Inc., 1953, D. C. Conn., 116 F. Supp. 538, 545, exemplifies the difference between the dissemination of news and a publication not a vehicle of information. There the court stated with reference to the privacy count: “If * * * the story * * * was fictionalized * * * *, I may not now rule, as a matter of law, that it was of legitimate public interest because informational and on that account not actionable. * * *”
Cason v. Baskin, 1944, 155 Fla. 198, 20 So.2d 243, 168 A. L. R. 430, is a similar decision.
Leverton v. Curtis Pub. Co., 1951, 3 Cir., Pa., 192 F.2d 974, 976, states with reference to the publication in a newspaper of a picture of that plaintiff as she lay in a street immediately after having been struck by an automobile, “If it invaded the right of the plaintiff to stay out of public attention, it was a privileged invasion, her interest in being left alone being overbalanced by the general public interest in being kept informed.”
Plaintiffs state: “The identification of the body of Jimmy Bremmer was made from articles of clothing taken from the remains.” It is not pleaded or contended the body was unclothed or that any of its organs or private parts were shown in the picture. There is no suggestion of indecent exposure. The only complaint is the picture of “the mutilated and decomposed body of Jimmy Bremmer * * * was exposed to public view and more particularly to the view of the parents * * *”
Waters v. Fleetwood, 1956, 212 Ga. 161, 91 S.E.2d 344, 345, 348, was a right-of-privacy action by a mother involving photographs of the body of her fourteen-year-old-murdered daughter, after it had been removed from a river. The petition alleged: “These photographs were taken at close range, showing the gruesome effects of an atrocious crime, and displaying the dead body of the petitioner‘s child as an object of public curiosity. The photographs showed the decomposition of part of the child‘s body and showed it wrapped in chains.” The trial court sustained a general demurrer to the petition. After considering decisions from various jurisdictions the Supreme Court of Georgia affirmed, holding the facts alleged did not state a cause of action. The decision states:
“The extracts from the above cases illustrate the tendency of courts of other jurisdictions to hold that, where an incident is a matter of public interest, or the subject matter of a public investigation, a publication in connection therewith can be a
The Waters case was based upon the sale of copies of the pictures which had been published in the newspaper. The court held the same rule would apply to the sale as to the publication. That point need not be determined in the case at bar which involves only publication in a newspaper.
The Waters case was decided by the same court which decided the Pavesich case, supra, in 1905, which, we have noted, was the first decision by a state court of final jurisdiction to recognize the doctrine of the right of privacy, and which is considered a leading case. Moreover, it is the same court which, in 1930, decided Bazemore v. Savannah Hospital, 171 Ga. 257, 155 S. E. 194, relied upon by plaintiff. That it did not consider the Bazemore case in point is evident from the statement in Waters: “There is no decision in this State which is in point on its facts with the present case.” Later the court in the Waters case disposed of the Bazemore case with the statement it “was not a unanimous decision.”
In Kelley v. Post Publishing Co., 1951, 327 Mass. 275, 277, 279, 98 N.E.2d 286, 287, 288, defendant published a picture of the mutilated body of plaintiffs’ fifteen-year-old daughter, killed in an automobile accident. The pleading alleged the picture “‘was a gross caricature and depicted her features in a deformed and hideous manner and distorted * * * [her] features.” The trial court sustained a demurrer to the petition. In affirming, the court stated:
“Doubtless many persons at such a time would be distressed or annoyed by a publication of the sort here involved. It is a time above all others when they would prefer to be spared the anguish of wide or sensational publicity. But if the right asserted here were sustained, it would be difficult to fix its boundaries.
“*** The publication of such a photograph might very well be indelicate or lacking in good taste, but it would not in our opinion, for the reasons already discussed, constitute an actionable wrong to the plaintiffs.”
In Abernathy v. Thornton, 1955, 263 Ala. 496, 83 So.2d 235, 237, the photograph of the body of plaintiffs’ son, shot by a woman, showed the metal bullet protruding from his head. In holding the complaint insufficient the court discussed authorities and quoted with approval from a text, “There can be no privacy in that which is already public“, and “It does not exist in the dissemination of news and news events * * *”
Jacova v. Southern Radio and Television Co., 1955, Fla., 83 So.2d 34, 36, 40, involved a canned film of gambling raids in one of which plaintiff (apparently a bystander) was shown. A summary judgment was affirmed upon appeal on the ground the publication was in connection with the dissemination of legitimate news items. The decision quotes with approval:
“The public has an interest in the free dissemination of news. This interest was well stated by that great American, Thomas Jefferson, in the following words: “The only security of all is in a free press. The force of public opinion cannot be resisted, when permitted freely to be expressed. The agitation it produces must be submitted to. It is necessary to keep the waters pure. No government ought to be without censors; and where the press is free no one ever will.” * * * it is vital that no unreasonable restraints be placed upon the working news reporter or the editorial writer.”
In Jones v. Herald Post Co., 230 Ky. 227, 229, 18 S.W.2d 972, 973, plaintiff‘s picture was published with a story of her conduct in resisting and attacking her husband‘s assassins. A
Samuel v. Curtis Pub. Co., 1954, D. C. Cal., 122 F. Supp. 327, was based upon a published photograph showing plaintiff attempting to dissuade a young woman from committing suicide. Plaintiff in Berg v. Minneapolis Star & Tribune Co., 1948, D. C. Minn., 79 F. Supp. 957, was engaged in family litigation. There were summary judgments for defendants in these cases.
Among other cases in which the pleadings of plaintiff were held insufficient are: Smith v. Doss, 251 Ala. 250, 37 So.2d 118, 119, Themo v. New England Newspaper Pub. Co., 306 Mass. 54, 27 N.E.2d 753, and Elmhurst v. Pearson, 1945, 80 App. D. C. 372, 153 F.2d 467.
In Sidis v. F-R Pub. Corp., 1940, 2 Cir., N. Y., 113 F.2d 806, 809, 138 A. L. R. 15, 19, 20, a count of the petition based upon the right of privacy was held insufficient. The decision states also: “We express no comment on whether or not the news worthiness of the matter printed will always constitute a complete defense. Revelations may be so intimate and so unwarranted in view of the victim‘s position as to outrage the community‘s notions of decency. * * * Regrettably or not, the misfortunes and frailties of neighbors and ‘public figures’ are subjects of considerable interest and discussion to the rest of the population. And when such are the mores of the community, it would be unwise for a court to bar their expression in the newspapers, books, and magazines of the day.”
Plaintiffs refer to Douglas v. Stokes, 1912, 149 Ky. 506, 149 S. W. 849, 850, 42 L. R. A., N. S., 386, Ann. Cas. 1914B 374, and Bazemore v. Savannah Hospital, 1930, supra, 171 Ga. 257, 155 S. E. 194. In Douglas v. Stokes defendant was employed to photograph for plaintiffs the nude corpse of their malformed infant twins. He made additional copies and secured a copyright from the patent office. The court held this was a breach of the agreement, for which damages were allowable. Douglas v. Stokes is cited in the footnote in 41 Am. Jur., Photography, Portrait Painting, and Engraving, section 3, page 127, along with similar cases.
Neither of the foregoing decisions is here in point. Nor are we able to agree with some of the conclusions which have been expressed, as to their meanings. Perhaps they should be classed with cases out of which some readers seem able to get more than the courts put in.
Plaintiffs state: “While it may be true that the public was interested in the fact that the missing Bremmer boy was found and whether or not he was dead or alive, the public had no legitimate interest or concern in the condition of the body.” That conclusion is without support. From a news standpoint the public is interested in the appearance of the body of such a local victim. Such appearance may be pictured by words or by photographs or both.
There is a good statement in Leverton v. Curtis Pub. Co., 1951, D. C. Pa., 97 F. Supp. 181, affirmed 192 F.2d 974: “The plaintiff says the picture is simply sensational, which it also is, but the courts are not concerned with the canons of good taste, and pictures which startle, shock, and even horrify may be freely published, provided they are not libelous or indecent, if the subject of the picture consents or if the occasion is such that his right of privacy does not protect him from the publication. The right is, of course, variable and in some cases it may dwindle almost to the vanishing point, as where an individual, perhaps involuntarily, becomes involved in some newsworthy event or some situation in which the public has a legitimate interest.”
Barber v. Time, Inc., 348 Mo. 1199, 1206, 159 S.W.2d 291, 295, states: “The determination of what is a matter of public
Mills v. Denny, 245 Iowa 584, 589, 63 N.W.2d 222, 225, 40 A. L. R.2d 933, 938, states: “Nevertheless the rule is quite well settled in all jurisdictions that the question as to whether or not there is a privilege, absolute or qualified, under the circumstances or occasion involved, is for the court.”
It is conceded the incident of the finding of the body of the missing local boy was one of proper public interest. In other words, the event was newsworthy. Under the decisions cited herein, it is clear the facts pleaded by plaintiffs were insufficient to state a cause of action against defendant. The trial court was correct in so concluding.—Affirmed.
GARFIELD, WENNERSTRUM, SMITH, THOMPSON, and PETERSON, JJ., concur.
LARSON, C. J., and BLISS and HAYS, JJ., dissent.
LARSON, C. J. (dissenting) —I am unable to concur in the conclusions reached in Division III of the majority opinion. Having correctly determined in Divisions I and II that Iowa does recognize the right of privacy, and that the court did not adjudicate against plaintiffs under
Under this record, however, the court refuses to examine
I also cannot agree with the application of this rule by the courts of Georgia and Alabama in their apparent determination that pictures of news interest, no matter how morbid and repulsive they may be, or how much they may needlessly hurt anyone concerned, are privileged and that publishers are thereafter governed solely by their own consciences’ and sense of decency in determining whether or not such pictures are printed.
I am not advocating that the courts or anyone else try to act as censors of the press, but who will protect the invaded rights of citizens if the courts do not? It is not censoring, as I view it, to provide a remedy for a wrong, once the wrong has been done.
It is my feeling that we should take this opportunity to clearly express a sound position on this important question. We should recognize the right of privacy by more than lip service. We should limit and define the privilege accorded the press and radio to invade this right of individual privacy here in Iowa. It must be done sometime. This is not a new thought, for in Prosser on Torts, 2d Ed., pages 643, 644, we find the following statement:
“Again the privilege is not unlimited, but the line is a most difficult one to draw. The cases in which the privilege has been found to be exceeded have involved outrageous methods such as the theft of a photograph, or extreme catering to the morbid and the sensational, such as the publication of the picture of the
Clearly, then, the privilege of the publisher is not absolute. But because the line is difficult to draw, we should not try to avoid it this way. We are constantly called upon to draw distinctions just as difficult, and we try to do so for the benefit of bench and bar. I would reverse this judgment and order the trial court to at least hear and see the evidence before determining, under such guidance as we can provide at this time, whether or not as a matter of law defendant did breach the privilege to invade plaintiffs’ right of privacy extended to it under these circumstances.
BLISS and HAYS, JJ., join in this dissent.