Barr v. Southern Bell Telephone and Telegraph Co. , 13 N.C. App. 388 ( 1972 )

185 S.E.2d 714 (1972) 13 N.C. App. 388

Phillip BARR
v.
SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY.

No. 7121SC531.

Court of Appeals of North Carolina.

January 12, 1972.

Wilson, Morrow & Boyles, by John F. Morrow, Winston-Salem, for plaintiff.

Womble, Carlyle, Sandridge & Rice, by William F. Womble and James C. Frenzel, Winston-Salem, for defendant.

BROCK, Judge.

Plaintiff's complaint and evidence before the trial judge, and his entire argument on this appeal, are centered upon his contention that defendant has invaded plaintiff's right of privacy. North Carolina has recognized, as have most states, a cause of action for an invasion of an individual's right of privacy, and has recognized in such instances a right to nominal damages where special damages cannot be shown. Flake v. Greensboro News Co., 212 N.C. 780, 195 S.E. 55.

For discussions of the beginning and development of the recognition of a cause of action for invasion of an individual's right of privacy and discussions of the nature of the privacy so protected, see: Peck v. Tribune Co., 214 U.S. 185, 29 S. Ct. 554, 53 L. Ed. 960 (1908); Flake v. Greensboro News Co., supra; Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68 (1905); Sinclair v. Postal Telegraph & Cable Co., Sup., 72 N.Y.S.2d 841; Anno., "Invasion of Privacy by Use of Plaintiff's Name or Likeness for Nonadvertising Purposes," 30 A.L.R. 3d 203; Anno., "Invasion of Privacy by Use of Plaintiff's Name or Likeness in Advertising," 23 A.L.R. 3d 865; Anno., "Right of Privacy," 14 A.L.R. 2d 750; Anno., "Right of Privacy," 14 A.L. R.2d 750 (A.L.R.2d Later Case Service); Anno., "Right of Privacy," 168 A.L.R. 446; Anno., "Right of Privacy," 138 A.L.R. 22; Hofstadter and Horowitz, The Right of Privacy (1964); Prosser, Law of Torts, § 117 (4th ed. 1971); ALI Restatement of Torts, § 867; Warren and Brandeis, The Right to Privacy, 4 Harv.L. Rev. 193 (1890); Nizer, The Right of Privacy, 39 Mich.L.Rev. 526 (1941); Prosser, Privacy, 48 Calif.L.Rev. 383 (1960); Gordon, Right of Property in Name Likeness, Personality and History, 55 Nw.U.L.Rev. 553 (1961); Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, 39 N.Y.U.L.Rev. 962 (1964).

In the case now before us, the evidence tends to show that plaintiff consented that his privacy could be invaded by defendant to the extent of publishing his name and picture together in his employer's advertisement. The evidence further tends to show that defendant published the likeness of someone other than plaintiff and published plaintiff's name as identification of the person whose likeness was published.

This evidence would justify, although not compel, the jury to find that defendant had gone beyond the scope of plaintiff's consent and thereby had invaded plaintiff's right of privacy. Such a finding by the jury would entitle plaintiff to an assessment of nominal damages even though he may not be able to show special damages.

In our opinion the trial judge committed error in granting summary judgment for defendant.

Reversed.

VAUGHN and GRAHAM, JJ., concur.