Bazemore v. Savannah Hospital , 171 Ga. 257 ( 1930 )

In an action to recover damages and for injunction, etc., for a violation of the right of privacy, a father and mother suing jointly can not recover from a hospital, a photographer, and a newspaper, sued jointly, for making, selling, and publishing photographs of their infant malformed child, a day or two old, who was placed in the hospital for treatment. The child, if living, would have a right to sue and recover for a violation of the right of privacy, but the cause of action would not be in its parents. Pavesich v. New England Life Ins. Co., 122 Ga. 190, 209 (supra); Murray v. Lith. Co., 28 N.Y.S. 271 (supra); Sorrels v. Matthews, 129 Ga. 319 (58 S.E. 819, 13 L.R.A. (N.S.) 357, 12 Ann. Cas. 404); Allen v. Railroad, 54Ga. 503; Chapman v. Western Union Tel. Co., 88 Ga. 763 (supra); So. Ry. Co. v. Jackson, 146 Ga. 243(2) (91 S.E. 28), 21 R.C.L. 1196 et seq. In the opinion of the writer the court below did not err in sustaining the general demurrer and dismissing the case.

This case involves the question of "the right of privacy." The law respecting this right is purely modern. Pavesich v. NewEngland Life Ins. Co., supra; 21 R.C.L. 1196. What is this right? "The right of privacy is the right to be let alone; the right of a person to be free from unwarranted publicity. A more specific, but less accurate, definition is the right to live without having one's name, picture or statue, or that of a relative, made public against his will." 21 R.C.L. 1196. "The assertion of the right, at least so far as reported cases are concerned, seems to have been made for the first time in 1890. But it was not until 1905 that a court of last resort recognized this right and redressed its violation. Prior to 1890 the adjudicated cases, both in this country and in England, which might be said to have involved a right of privacy, were not based on the existence of such right, but were founded on a supposed right of property, or breach of trust or contract, or the like, and a claim to a right of privacy, independent of a property or contractual right, or some right of a similar nature, had, up to that time, never been recognized in terms of any decision. Since that time there have been very few reported cases in which the right has been recognized and vindicated, and the trend of authority seems to be against it." Ib. The same author (21 R.C.L.) declares, that, although the reported decisions of courts of last resort in which the right of privacy is involved are not numerous, it is evident that the general trend of judicial opinion is against the view that this is a legal right for the violation of which there is a legal remedy. The majority of these courts have declined to recognize the interference with one's privacy as an injury in a legal sense. The reason on which this view is based is that the law has not provided for a right to possess or maintain without disturbance any particular condition of feeling, and that to enforce such a right at this time would do violence to settled principles by which the public have long been guided. The law can not undertake to remedy sentimental injury and it is not concerned with the feelings of a person, except as the discomfort and suffering are connected with the possession or enjoyment of property. Id. "In some jurisdictions equitable relief is granted only where some property right has been invaded or some pecuniary loss suffered. In consequence of this rule, at least with respect to the publication of another's picture, the courts have adopted the theory that the right of privacy is a property right. It has been said that a person has the same property in the use of his face for commercial purposes as in his literary compositions, and that, if his face has a value, the value is his exclusively until the use of the same be granted away to the public."

We have quoted at some length from a text based on decisions from other jurisdictions, and it is apparent that other jurisdictions are divided upon this question of the right to recover for a violation of the right of privacy. But it will be noted that there are no cases mentioned where the right to recover is not in the person sustaining the injury. In other words, it is a personal right. We have found no case exactly like the present, where the parents of an infant child a few days old have sued to recover for a violation of the right of privacy, unless it be Douglas v. Stokes, 149 Ky. 506 (149 S.W. 849, 42 L.R.A. (N.S.) 386, Ann. Cas. 1914B, 374), where it is evident that the cause of action arose from the breach of the contract made between the parents and the photographer, and they sought to recover in their own right. But, whatever the rule may be in other jurisdictions, this court has given its endorsement to the rule laid down in the case of Murrayv. Lith. Co., supra, where it was held that a person can not sue to enjoin the publication of a portrait of his infant child, or for damages caused thereby. Judge Cobb, in a very well-considered and able opinion rendered in Pavesich v. NewEngland Life Ins. Co., supra, said, referring to the Murray case, supra: "This decision was undoubtedly correct; for, if there was any right to sue for a violation of the right of privacy, the cause of action was in the child and not in the parents." And there is no decision of this court, so far as we are aware, which holds to the contrary. It was further said in the Murray case: "Two insuperable objections arise to preclude any recovery; first, as conjuncta personæ, merely, plaintiff has no right of action for a wrong committed against the person of another, assuming the unauthorized publication of a portrait of the latter to be an unlawful invasion of his right to the enjoyment of personal privacy; secondly, as parent, his only right of action, growing out of wrongs committed against the person of his child, is for the recovery of damages for loss of services of the child, and the expenses to which he has been subjected in effecting a cure from the injury, elements of damages which are obviously wanting in this action; and even in an action for loss of services and expenses attending the cure, no recovery can be had for the outraged mental sensibilities of the parent." This court has said that the ruling made in the Murray case was "undoubtedly correct," and it may be added that it is in accord with other decisions of the highest courts of other jurisdictions. And see Roberson, an infant, by Margaret Bell, her guardian ad litem, v. Rochester Folding Box Co.,171 N.Y. 538 (64 N.E. 442, 59 L.R.A. 478, 89 Am. St. Rep. 828); 21 R.C.L. 1197, § 2, and cit. In Allen v. R. Co., 54 Ga. 503, this court held that "a parent can not maintain an action for damages on account of the homicide of his infant child who at the time of his death was incapable of rendering him any services." It will be recalled that in the instant case the infant child was only a day or two old. And see, to the same effect as the ruling in the Allen case, Sorrels v. Matthews, 129 Ga. 319 (supra). In Chapman v. W.U. Tel. Co., (supra), this court said: "Thus, where a father sues for a grievous physical injury to his minor child, he can not recover for the laceration of his parental feelings, even in conjunction with damages for the loss of services, though his mental suffering be necessarily severe and heartrending." In So. Ry. v. Jackson, supra, this court held that "The fact that a mother witnessed the mangling of her child and became frightened and suffered a severe nervous shock therefrom would not entitle her to recover" (citing a number of Georgia authorities). It may be added that it was only after a thorough and painstaking investigation and citation of the authorities bearing upon the right of privacy that Judge Cobb stated in the Pavesich case, quoting from the Murray case, "that a person can not sue to enjoin the publication of a portrait of his infant child, or for damages caused thereby, . . is undoubtedly correct." Even if the language of Judge Cobb in the Pavesich case was obiter, it was approved by the entire bench, and is in accord with the weight of outside authority, and of similar cases decided by this court.

But it is insisted, that, while plaintiffs may not have the right to recover damages in a case like the present, a person may prevent and restrain by equitable action the use of his child's picture for purposes of trade. If it is thought that in a case like the present the publication of the picture of one's malformed child should be enjoined, the answer is that recourse should be had to the legislative branch of the government, and not to the judicial. For, as was well said by Judge Cobb in thePavesich case, "the courts have no authority to give a remedy, no matter how great the grievance." I am authorized by Mr. Presiding Justice Beck to state that he concurs in the above dissent.