162 P.2d 133 | Ariz. | 1945
Plaintiff's amended complaint charged defendants with the publication and circulation of an alleged libelous statement, together with the unauthorized publication and circulation of his photograph. He alleged that the statements were false and defamatory, and that by reason thereof he was injured in his reputation and good name. He further alleged that the use of his photograph, as published in connection with a magazine story of a crime, and not as news, violated his right of privacy, that he was thereby subjected to ridicule and suffered mental pain and annoyance. He prayed for actual and punitive damages in a substantial sum.
Pending the action, but prior to the filing of the amended complaint, one of the original defendants, Harry E. Strong, died. Plaintiff's application to substitute the administratrix of his estate, his widow, Georgia Marie Strong, as a party defendant was denied. While several defendants were named in the complaint, apparently no manner of service was made on any except Hillman Periodicals, Inc., Hillman Brothers, a corporation, and Sensation Magazine, Inc. The service *298 so made was by delivery of a copy of the amended complaint and summons to Georgia Marie Strong, claimed to be the legal agent of these corporations. Hillman Periodicals, Inc., appeared specially and moved to set aside the purported service of summons upon it, on the ground that it was a nonresident corporation, not qualified to transact business in Arizona, that it had never transacted business here, and that Georgia Marie Strong was not its agent for any purpose. This motion was supported by affidavits. Counter affidavits were filed by the plaintiff. The motion was submitted to the court on the showings so made.
From the proofs so submitted it appears that the moving corporate defendant is a foreign corporation which had never qualified to transact business in this state and had not maintained an office in Arizona nor appointed any agent here, and was engaged solely in interstate commerce. It consigned periodicals from points without Arizona to Strong's News Agency, operated by the deceased in his lifetime, and later by the administratrix of his estate — his widow. On the last day of the month, bills for all magazines shipped were sent to the agency, which was then, before the 10th of the following month, required to pay the wholesaler's purchase price, with the privilege of securing a credit for unsold magazines by the return of the top covers thereof. The court granted the motion to set aside the service, by an order dated December 7, 1943, reading as follows:
"Motions having been taken under advisement, it is ordered granting motion to set aside purported service of summons."
The order denying the substitution of the administratrix was not made until January 17, 1944. Notice of appeal from the above orders is dated and was filed on February 16, 1944. Since this is an appeal by the *299 plaintiff, we will continue to designate the parties as plaintiff and defendants.
By appropriate assignments, plaintiff questions the correctness of the trial court's orders in denying his motion to substitute the administratrix, and in granting the motion to set aside the service as to the corporate defendant. The defendants contend that we are without jurisdiction to pass upon the validity of the court's order in granting the motion to set aside, service, since it is a final order or judgment, and no appeal was taken therefrom until after the elapse of sixty days after its entry.
The issues so presented would appear simple and easy of solution. We find, however, that this garb of innocence is underlaid with a shield of legal thorns. The problem presented is not free from difficulty. The issues involve matters of interest and moment, difficult of solution, requiring more than ordinary exertion and research, and discrimination in the application of the tested rules which must be our yardstick.
[1] It is our view that insofar as the amended complaint states a cause of action for libel, it does not survive. The common law and the prevalent rule is that a pending action or cause of action for libel abates on the death of either the wrongdoer or the person injured, unless it is within a statute providing for survival. Blodgett v. Greenfield,
[2] Our law does not specifically provide for the survival of a cause of action for slander or libel. The common-law rule applies, under the provisions of Sec.
[3] It is urged by plaintiff that the following provision of Sec. 21-534, supra, should be construed to include an action for libel: "An action to recover damages for injuries to the person . . . shall not abate by reason of the death of the defendant, . . . ." Plaintiff argues forcefully and cites a number of authorities in support of his position that a cause of action for libel is an injury to the person. The weight of authority would appear to be to this effect. Times-Democrat Pub.Co. v. Mozee, 5 Cir.,
"In the former, the noun `person' indicates a natural body, or perhaps a body corporate, and the injuries contemplated are injuries to that body. In the latter phrase the noun employed is `injury,' and the word `personal' is merely adjective, and, therefore, of far less significance than when used substantively."
[4] It is commonly understood that an action or cause of action for libel is injury to character or reputation. Black's Law Dict., 3d Ed., 1103; 33 Am. Jur. 38, sec. 3, Libel and Slander. Libel is defined in all dictionaries as a publication tending to blacken or besmirch character or reputation. In ordinary acceptation, libel is considered as relating to character and reputation, as distinct from a wrongful injury to the person. The civil action for libel is not defined by the laws of the state, therefore, in this action the statutory definition of criminal libel may be used as a guide. Central Arizona Light Power Co. v. Akers,
". . . any malicious falsehood (or defamation) expressed by writing . . . which tends to bring any person into disrepute, contempt or ridicule, or to blacken the memory of one who is dead; . . . or . . . which tends to impeach the honesty, integrity, virtue or reputation, or publish the natural or alleged defects of one who is alive, and thereby to expose him to public hatred, contempt or ridicule."
[5] As defined in the statute, and as commonly understood and used, libel is not to be confused with "injury to the person." Whatever the construction may have been in other jurisdictions, we must give to the meaning of the term as used in Sec. 21-534,supra, the obvious legislative intent. The statutory rule is found in Sec.
[6] Plaintiff asserts that if it should be held the libel cause of action does not survive, the allegations pertaining to the invasion of his right of privacy, which is a property right, constitutes a cause of action which does survive. As alleged, plaintiff's cause based on the invasion of his right of privacy does not involve any property right. For the wrongful invasion of the "right of privacy," or, as it is defined, "the right to be let alone," a cause of action has been recognized. Restatement, Torts, vol. 4, sec. 867 acknowledges the right as follows:
"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."
[7] This court has adopted the rule that where not bound by its previous decisions or by legislative *303
enactment, it would follow the Restatement of the Law. Smith v.Normart,
Remedy for the protection of the right of privacy was not afforded at ancient common law. The law did not protect the right. The protection of privacy was a matter of individual effort. The recognition of a right of action for invasion of the right of privacy is an outgrowth of the complexities of our modern civilization, and doubtless due to the wider range of publicity. Not until the latter half of the past century was there a widespread dissemination of publications. For the most part written publications were localized. Individuals, as a rule, remained at home. They were known intimately in their communities. They were neighbors rather than acquaintances. Under these circumstances, an unauthorized or wrongful printing, writing, picture, or publication of such a character as to invade the right of privacy, might have small effect and could be largely corrected or minimized by the efforts of the injured party. Because of the changes mentioned, this became no longer feasible. Unscrupulous advertisers and publishers without authority used pictures of individuals for gain or in a sensational way *304 to promote sales of publications. To meet this situation, the courts about the first of the century began to recognize the rights of privacy in a legal way, and afforded relief for its violation.
[8, 9] While the doctrine of privacy is still in its infancy, the following principles appertaining to actions for its protection are fairly well established. Strictly, it is an incident of the person, and not of property. It is a personal action which does not survive the death of the injured party. It does not exist if there has been consent to publication, or where the plaintiff has become a public character, and thereby waived his right to privacy, nor in the ordinary dissemination of news and events, nor in connection with the life of a person in whom the public has a rightful interest, nor where the information would be of public benefit. Metter v. Los Angeles Examiner,
[10] The question of whether a right of action for the invasion of the right of privacy exists has never, heretofore, been considered by this court. The majority of the cases, and "the preponderance of authority supports the view that, independently of the common rights of property, contract, reputation, and physical integrity, there is a legal right called the right *305 of privacy, the invasion of which gives rise to a cause of action." 138 A.L.R. 28. We believe the majority view to be sound and adopt the doctrine here.
What we have said does not mean that the cause of action for an invasion of the right of privacy may not involve property or contract rights. The doctrine has been asserted as applying in cases where photographs belonging to the plaintiff were wrongfully published in violation of an implied contract, or where the photographs were procured through trespass. 138 A.L.R. 33. But these decisions are not predicated upon "the right of privacy as an independent legal concept." 138 A.L.R. 33. In the case at bar, no allegations appear in the complaint to bring the case within the view that either a "property" or "contract" right was violated. There is no claim that the photograph published was plaintiff's personal property, or that its value is involved, or that the defendants violated any implied contract. The claim is for damages for mental pain and annoyance resulting from the unauthorized publication of plaintiff's picture.
[11, 12] It is said, "In order to recover for an invasion of the right of privacy, it is not necessary for the plaintiff to allege or prove special damages." 41 Am. Jur. 934, Privacy, § 11. The test for the action is admirably stated at page 935, § 12 of the Privacy Article in 41 Am. Jur., as follows:
"In order to constitute an invasion of the right of privacy, an act must be of such a nature as a reasonable man can see might and probably would cause mental distress and injury to anyone possessed of ordinary feelings and intelligence, situated in like circumstances as the complainant; and this question is to some extent one of law."
[13, 14] The gravamen of the action here charged is the injury to the feelings of the plaintiff, the mental anguish and distress caused by the publication. In an *306
action of this character, special damages need not be charged or proven, and if the proof discloses a wrongful invasion of the right of privacy, substantial damages for mental anguish alone may be recovered. Hinish v. Meier Frank Co.,
[16] In connection with plaintiff's second assignment, defendants have called attention to Hallgren v. *307 Sunset Paint Co.,
Frankly, we see no merit to plaintiff's assignment that the court erred in setting aside the purported service on the corporate defendant. The matter appears to have been submitted on affidavits. The facts amply justify the court in holding that the party served was not the agent of the defendant. The cases cited by plaintiff, and particularly Clements v. MacFaddenPublications, Inc., D.C.,
[17] In the case at bar, the corporate defendant seems to have had no control over either of the Strongs. They were not considered as agents. The transactions between the Strongs and the corporate defendant were apparently sales on consignments. So far as the foreign corporation was concerned, it was engaged only in interstate commerce, and had, no Arizona agent. Sales on consignment, factorage agreements, or sales on commission, by a foreign corporation to a dealer within the state, of products from without the state, do not constitute doing business within the state, where the local merchant or factor acts entirely in his own behalf in making sales or contracts for the sale of such goods. 20 C.J.S. 59, Corporations, § 1840; Hessig-Ellis DrugCo. v. Sly,
". . . The requirement that sales be reported to the seller by the purchaser does not prevent the passing of the title, nor does a provision in the contract allowing the purchaser to return unsold goods, nor does the designation of the purchaser's sale territory. . . ."
[18-21] Three conditions are necessary to give a court jurisdiction to render a personal judgment *309
against a foreign corporation. It must be carrying on business in the state where process is served on its agent. Its business must have been transacted or managed by an agent or officer appointed by or representing the corporation in the state where service is had. The local law must make the corporation amenable to suit as a condition, express or implied, of doing business in the state.Connecticut Mut. L. Ins. Co. v. Spratley,
"A local dealer is not an agent within the meaning of a statute authorizing service of process on foreign corporations where he purchases goods from the corporation and in turn sells them to customers on his own account rather than as agent of the corporation. This is true, even though the corporation . . . reserves the right on the termination of the contract to take back the goods remaining on hand at invoice prices. To be *310 an agent for service of process, the local dealer must be in a position in some way to bind the foreign corporation in some business transaction."
[23] The trial court very properly granted the motion to set aside the purported service. Under the facts shown, Mrs. Strong was not a local agent of the corporation upon whom service could be had under the provisions of Sec.
The cause is remanded to the trial court with instructions to substitute the administratrix of the deceased as a defendant in the action insofar only as the complaint states a cause for the invasion of the right of privacy.
STANFORD, C.J., and LaPRADE, J., concurring.
