But in the case of Purcell v. Sowler the Court of Appeal expressly refused to extend the privilege even to the report of a meeting of poor law guardians, at which accusations of misconduct were made against their medical officer. And in their Lordships’ opinion it is clear that it cannot be extended to a report of statements made to the Bishop of Natal, and by him transmitted to the appellants, or to statements made to a reporter in the employ of the appellants, who for the purposes of the newspaper, sought an interview with messengers on their way to lay a complaint before the governor.
The language used by the learned judge in summing up the present case to the jury is open to some criticism, and does not contain so clear and complete an exposition of the law as might be desired. But in their Lordships’ opinion, so far as it erred, it erred in being too favorable to the appellants, and it is not open to any complaint on their part.
The only question that remains is as to the amount of damages. The assessment of these is peculiarly the province of the jury in an action of libel. The damages in such an action are not limited to the amount of pecuniary loss which the plaintiff is able to prove. And their Lordships see no reason for saying that the damages awarded were excessive or for interfering with the finding of the jury in this respect.
They will, therefore, humbly advise Her Majesty that the judgment appealed against should be affirmed and the appeal dismissed with costs.
CHAPTER VII
INTERFERENCE WITH PRIVACY
ROBERSON v. ROCHESTER FOLDING BOX COMPANY
Court of Appeals, New York, June 27, 1902.
Reported in 171 New York Reports, 538.
Parker, C. J.[[526]] The Appellate Division[[527]] has certified that the following questions of law have arisen in this case, and ought to be reviewed by this court: 1. Does the complaint herein state a cause of action at law against the defendants or either of them? 2. Does the complaint herein state a cause of action in equity against the defendants or either of them? These questions are presented by a demurrer to the complaint, which is put upon the ground that the complaint does not state facts sufficient to constitute a cause of action.
As a demurrer admits not only those facts which are expressly alleged in the complaint, but everything which can be implied by fair and reasonable intendment from its allegations (Marie v. Garrison, 83 N.Y. 14, 23), we are to inquire whether the complaint, regarded from the standpoint of this rule, can be said to show any right to relief either in law or in equity.
The complaint alleges that the Franklin Mills Co., one of the defendants, was engaged in a general milling business and in the manufacture and sale of flour; that before the commencement of the action, without the knowledge or consent of plaintiff, defendants, knowing that they had no right or authority so to do, had obtained made, printed, sold, and circulated about 25,000 lithographic prints, photographs and likenesses of plaintiff, made in a manner particularly set up in the complaint; that upon the paper upon which the likenesses were printed and above the portrait there were printed, in large, plain letters, the words, “Flour of the Family,” and below the portrait in large capital letters, “Franklin Mills Flour,” and in the lower right-hand corner in smaller capital letters, “Rochester Folding Box Co., Rochester, N.Y.”; that upon the same sheet were other advertisements of the flour of the Franklin Mills Co.; that those 25,000 likenesses of the plaintiff thus ornamented have been conspicuously posted and displayed in stores, warehouses, saloons, and other public places; that they have been recognized by friends of the plaintiff and other people, with the result that plaintiff has been greatly humiliated by the scoffs and jeers of persons who have recognized her face and picture on this advertisement and her good name has been attacked, causing her great distress and suffering both in body and mind; that she was made sick and suffered a severe nervous shock, was confined to her bed and compelled to employ a physician, because of these facts; that defendants had continued to print, make, use, sell, and circulate the said lithographs, and that by reason of the foregoing facts plaintiff had suffered damages in the sum of $15,000. The complaint prays that defendants be enjoined from making, printing, publishing, circulating, or using in any manner any likenesses of plaintiff in any form whatever, for further relief (which it is not necessary to consider here) and for damages.
It will be observed that there is no complaint made that plaintiff was libelled by this publication of her portrait. The likeness is said to be a very good one, and one that her friends and acquaintances were able to recognize: indeed, her grievance is that a good portrait of her, and, therefore, one easily recognized, has been used to attract attention toward the paper upon which defendant mill company’s advertisements appear. Such publicity, which some find agreeable, is to plaintiff very distasteful, and thus, because of defendants’ impertinence in using her picture without her consent for their own business purposes, she has been caused to suffer mental distress where others would have appreciated the compliment to their beauty implied in the selection of the picture for such purposes; but as it is distasteful to her, she seeks the aid of the courts to enjoin a further circulation of the lithographic prints containing her portrait made as alleged in the complaint, and as an incident thereto, to reimburse her for the damages to her feelings, which the complaint fixes at the sum of $15,000.