[No. 9425. Department Two. September 6, 1911.]
BESSIE KENNY HILLMAN, a Minor, by C. D. Hillman, her
Guardian, etc., Appellant, v. STAR PUBLISHING
COMPANY, Respondent. «1»
LIBEL AND SLANDER - PUBLICATION OF PHOTOGRAPH - STATUTES -
CONSTRUCTION. The publication of plaintiff's photograph, which
was a true likeness and inoffensive in itself, in connection
with a story of her father's crime, is not a libel as defined
by Rem. & Bal. Code, SSSS 2424 and 292, providing that it is
a libel to expose any living person to hatred, contempt or
obloquy or to deprive him of the benefit of public confidence
or social intercourse, and that it is sufficient to allege
generally that the publication was of and concerning the
plaintiff, without alleging extrinsic facts showing the
application of the matter; since the photograph did not make the
article "of and concerning" the plaintiff.
TORTS - RIGHT OF PRIVACY - PUBLICATION OF PHOTOGRAPH. The
publication of an inoffensive photograph and true likeness of
a person, in connection with the story of her father's crime,
is not an invasion of the right of privacy for which the law
affords any remedy.
«1» Reported in 117 Pac. 594.
692 HILLMAN v. STAR PUBLISHING CO.
Opinion Per CHADWICK, J. 64 Wash.
Appeal from a judgment of the superior court for King
county, Albertson, J., entered November 18, 1910, upon
sustaining a demurrer to the complaint, dismissing an action for
libel. Affirmed.
Frederick R. Burch and Oliver Hulbeck, for appellant.
John H. Perry, for respondent.
CHADWICK, J. - On or about August 26, 1910, a Federal
grand jury indicted C. D. Hillman and he was arrested.
This fact was made merchandise by defendant, the publisher
of a newspaper in the city where plaintiff resides. It
published on the front page of its paper the following article:
"HILLMAN ACCUSED OF FRAUD.
"WARRANT FOR BIG REAL ESTATE SHARK. FEDERAL
OFFICIALS ARE HOT ON HIS TRAIL.
"Charged by the United States government officials with
attempting one of the biggest swindles in the history of the
northwest, C. D. Hillman, millionaire real estate operator,
whose specialty has been selling lands to poor men, will be
arrested this afternoon.
"Warrants issued today charge Hillman and three of his
associates with conspiracy for using the mails to defraud.
Other charges will follow says United Skates District
Attorney Todd. The penalty prescribed is not more than five
years in the penitentiary and not more than $10,000 fine.
With Hillman, in the warrant signed today by United States
Post Office Inspector C. J. Backus are: Sam S. Sutter,
Hillman's lieutenant in operating the steamer Venus in carrying
would-be purchasers to see the Hillman property. T.E.
Keeley, in charge of the Everett offices. H.C. Peet, president
of the 'Great Northern Land and Loan Company,' 470 Arcade
building. The warrant for Hillman's arrest follows a
searching investigation by the federal officials in Seattle. A
great mass of evidence has been gathered.
"THE SPECIFIC CHARGE,
"The specific charge laid against Hillman today is based
on a new real estate deal Hillman is now engaged on, ten
miles from Everett. Hillman has acquired title to about
12,000 acres of logged off lands at Port Susan. Hillman
called this the 'Birmingham Townsite Addition' to Everett.
HILLMAN v. STAR PUBLISHING CO. 693
Sept. 1911 Opinion Per CHADWICK, J.
He was offering parcels of this land for sale at $100 and
more. Prospectuses and blind advertisements were sent
by Hillman, it is charged, giving glowing accounts of the
future of Birmingham. A sawmill and charcoal factory were all
to be established there Hillman claimed. All these things,
according to the federal officers, were untrue and without
foundation.
"WAS IN TROUBLE BEFORE.
"Hillman was convicted on a similar charge in 1905. At
that time he appealed to the supreme court and a new trial
was granted on the contention that Hillman should have been
granted a change of venue prior to his first trial. For some
reason, this new trial was never held, and Hillman slowly but
very energetically resumed operations in Seattle. The first
complaints against Hillman were made after his management
of a sale of lots on Lake Washington. This tract he called
the 'Garden of Eden.' Among other specific complaints made
in the warrant upon which Hillman will be arrested today, is
one that alleges that on April 2, 1909, he rented a box
number 1393 in the Seattle post office under the assumed name of
C. A. Spencer. This constitutes another violation of the
federal statutes. Filed with the complaint against C. D.
Hillman and three of his associates today in the United States
court are marked copies of two Seattle newspapers in which
appeared last Sunday a score or more of 'blind' want
advertisements, calculated, the complaint alleges, to defraud the
readers of these papers."
It also published a photograph of C. D. Hillman and other
members of his family, including this plaintiff, who has
brought this action for damages. It is alleged:
"That by reason of said printing and publishing of said
articles and said headlines, in conjunction with the
photograph of said plaintiff, and that of C. D. Hillman, plaintiff
has been and is exposed to public hatred, contempt and
ridicule, and has thereby been deprived of the benefits of public
confidence and social intercourse, and has thereby suffered
great shame, humiliation and sense of disgrace, to her great
damage."
Defendant demurred to the complaint, and the court below
found that it did not state facts sufficient to constitute a cause
694 HILLMAN v. STAR PUBLISHING CO.
Opinion Per CHADWICK, J. 64 Wash.
of action, and ordered it dismissed. From this judgment an
appeal is taken.
It is insisted that a right of recovery can be sustained upon
the grounds, both or either, (a) that the article and
photograph when taken together are libelous, or (b) that the
unauthorized publication of the photograph is an invasion of
the right of privacy, and when coupled with the offensive
article, entitles plaintiff to compensatory damages. Whether
the act of the defendant is a libel can be disposed of by
reference to our statute. Turning to SSSS 2424 and 292, Rem.
& Bal. Code, we find that it is a libel "to expose any living
person to hatred, contempt, ridicule or obloquy, or to deprive
him of the benefit of public confidence or social intercourse ;"
and that "In an action for libel or slander, it shall not be
necessary to state in the complaint any extrinsic facts for the
purpose of shooting the application to the plaintiff of the
defamatory matter out of which the cause arose, but it shall be
sufficient to state generally that the same was published or
spoken concerning the plaintiff; and if such allegation be
controverted, the plaintiff shall be bound to establish on trial
that it was so published or spoken." The complaint alleges
that the photograph is a true likeness of plaintiff. We do not
find that the mere publication of a photograph, although
under circumstances indicating a wilful disregard of
private right, is such a publication as is contemplated by the
statute. It could have no tendency to expose a party to
contempt, ridicule, or obloquy, or operate to deprive her of social
enjoyment among right-thinking people. It would rather
excite pity for the victim, and invite the contempt of the
public toward those who, for the mere sake of sensation and gain,
are willing to take that which is not their own to serve an
unworthy end. Again, the published photograph being a true
likeness and being in and of itself inoffensive, it cannot be
held that, because of its publication in connection therewith,
the article was "of or concerning" the plaintiff. We shall
HILLMAN v. STAR PUBLISHING CO. 695
Sept. 1911 Opinion Per CHADWICK, J.
not pursue this feature of the case beyond the statutes, for
we deem them to be controlling.
Although it is not contended in the briefs that any
purpose was served by the publication of plaintiff's photograph
- indeed, it was admitted in oral argument that a wrong has
been done to plaintiff, as indeed it has; yet we find that
plaintiff's case does not fall within any of the rules so far
recognized by the courts, permitting a recovery for an invasion of
the so-called right of privacy. Unless controlled by some
dependent consideration (Peck v. Tribune Co., 214 U.S.
185; Foster-Milburn Co. v. Chian, 134 Ky. 424, 120 S. W.
364, 135 Am. St. 417; Atkinson v. Doherty & Co., 121 Mich.
372, 80 N. W. 285, 80 Am. St. 507, 46 L. R. A. 219), it has
been generally held that there is no such right. Roberson v.
Rochester Folding-Box Co., 171 N.Y. 558, 6; N. E. 442,
89 Am. St. 828, 59 L. R. A. 478; Henry v. Cherry & Webb,
30 R. I. 15, 73 Atl. 97, 136 Am. St. 928, 24 L. R. A. (N. S.)
991; 3 Northwestern Law Review, p. 1. Not so much because
a primary right may not exist, but because, in the absence of
a statute, no fixed line between public and private character
can be drawn. These authorities seem to be supported by the
better reason, although the subject has been discussed
instructively in the following articles and decisions: Pavesich
v. New England Life Ins. Co., 122 Ga. 190, 50 S. E. 68,
106 Am. St. 104, 69 L. R. A. 101; Corliss v. Walker
Co., 64 Fed. 280, 81 L. R. A. 283; Von Thordorovich v. Josef
Beneficial Ass'n, 154 Fed. 912; 4 Harvard Law Review, p.
193.
The defense in this case is purely technical, a call to
precedent as it has been established. A wrong is admitted, but
it is said there is no remedy. We regret to say that this
position is well taken.
"We do not wish to be understood as belittling the
complaint. We have no reason to doubt the feeling of annoyance
alleged. Indeed, we sympathize with it, and marvel at the
impertinence that does not respect it. We can only say that
696 PRINCE v. PRINCE.
Opinion Per Curiam. 64 Wash.
it is one of the ills that, under the law, cannot be redressed."
Atkinson v. Doherty & Co., supra.
This case presents a subject for legislation, and to the
legislative body an appeal might be so framed that in the
future the names of the innocent and unoffending, as well as
their likenesses, shall not be linked with those whose
relations to the public have made them and their reputations, in
a sense, the common property of men.
Judgment affirmed.
DUNBAR, C. J., CROW, MORRIS, and ELLIS, JJ., concur.