Poteet v. Roswell Daily Record, Inc. , 92 N.M. 170 ( 1978 )

OPINION

LOPEZ, Judge.

The plaintiffs appeal a summary judgment granted against them in a suit for invasion of privacy resulting from an article which appeared in the defendant’s newspaper. We affirm.

The only issue on appeal is whether the trial court erred in granting the summary judgment.

The plaintiffs filed a complaint against the defendant newspaper alleging that on January 6, 1977, the defendant published a fourteen year-old’s name, Renee Poteet, as having been the victim of an attempted sexual criminal act. The complaint alleged that Renee was not a public figure; that the publication was not newsworthy; and under the circumstances, the publication would be offensive to persons of ordinary sensibilities. The plaintiffs asked for special, general and punitive damages. The defendant filed a motion for summary judgment, and both parties filed affidavits. The court granted the defendant’s motion for summary judgment, and plaintiffs appeal.

Facts

Renee Poteet was kidnapped and criminally sexually assaulted on December 19, 1975. A complaint was filed with the magistrate on December 20th. The assistant district attorney stated in his affidavit that one of the reporters promised that Renee’s name would not be published in the article appearing at the time of the incident. Irrespective of whether such a promise was made, no article releasing plaintiff’s name was published prior to the preliminary hearing of January 6, 1977. After the preliminary hearing an article was published in the defendant’s newspaper naming Renee Poteet as the victim of a sexual assault. Notes for the story had been taken by a reporter at the preliminary hearing.

The plaintiffs do not allege that the publication was erroneously reported. They only allege: (1) that the publication was not newsworthy and was, therefore, not privileged; and (2) even if it was privileged, the defendant had no right to publish it on the grounds of estoppel and waiver.

In a recent United States Supreme Court case, Cox Broadcasting Corporation v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 1046, 43 L.Ed.2d 328 (1975), the Supreme Court said:

[T]he prevailing law of invasion of privacy generally recognizes that the interests in privacy fade when the information involved already appears on the public record.

In the instant case the article was published following an open preliminary hearing in magistrate court. The New Mexico Supreme Court, quoting from Prosser on Torts, 2d Ed., 623-624, stated:

“Since it obviously is to the interest of the public that information be made available as to what takes place in public affairs, a qualified privilege is recognized under which a newspaper . may make such a report to the public. * *

“An important field for the privilege is the reporting of any judicial proceeding, no matter how inferior the tribunal . Hubbard v. Journal Publishing Company, 69 N.M. 473, 368 P.2d 147 (1962).

The incident was a matter of public record and was therefore newsworthy. The trial court correctly ruled that the article published in defendant’s newspaper was privileged.

Plaintiffs argue that the newspaper had a general policy of refraining from using minors’ names in sexual assault incidents and that this policy estopped defendant from publishing the plaintiff’s name. The requirements of estoppel have been set out in Tome Land & Improvement Co. v. Silva, 83 N.M. 549, 494 P.2d 962 (1972). In Tome Land, the New Mexico Supreme Court stated:

It is the rule in New Mexico that estoppel by conduct arises when a party has been induced by the conduct of the other to do, or forbear from doing, something he would not have done but for such conduct. [citation omitted] the party asserting the estoppel must rely, to its detriment, on the conduct of the party against whom the estoppel is being asserted.

Plaintiffs introduced no affidavits which would indicate that they relied on defendant’s policy, or that they even had knowledge of the policy prior to the time Renee testified at the preliminary hearing. Without knowledge there can be no reliance. Estoppel was not applicable to this case as a matter of law.

Plaintiffs further argue that the newspaper waived its privilege by virtue of the reporter’s representations to the district attorney that plaintiff’s name would not be published.

Even assuming that the reporter made statements to the district attorney regarding non-publication of Renee’s name, such statements do not raise an issue of material fact which would preclude summary judgment.

As the New Mexico Supreme Court stated in Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972):

Unquestionably the burden was on defendants to show an absence of a genuine issue of fact, or that they were entitled as a matter of law for some other reason to a summary judgment in their favor, [citations omitted] However, once defendants had made a prima facie showing that they were entitled to summary judgment, the burden was on plaintiff to show that there was a genuine factual issue and that defendants were not entitled as a matter of law to summary judgment. [citations omitted]

As the party moving for summary judgment, the defendant made a prima facie showing by raising the defense of privilege, thus making it immune from suit as a matter of law. At that point the burden shifted to plaintiffs to show why defendant was not immune. Plaintiffs sought to do so by claiming that defendant had waived its privilege. When plaintiffs raised this claim, they had to show that there was an issue of fact as to waiver. They attempted to do this by saying the reporter had promised plaintiff’s name would not be published. This was insufficient to show waiver without raising the additional requirement of the reporter’s authority to speak for the defendant. Plaintiffs made no showing that the reporter had any authority to make the statements attributed to him. Absent authority, the statements of the reporter could not be considered as a waiver of a constitutional privilege by the defendant newspaper. See Rekart v. Safeway Stores, Inc., 81 N.M. 491, 468 P.2d 892 (Ct.App.1970).

Summary judgment was proper because defendant’s publication of the information was privileged as a matter of law, and waiver and estoppel do not apply as a matter of law. In spite of the unfortunate incident which occurred, we have no alternative but to affirm the trial court’s granting of summary judgment.

The summary judgment is affirmed.

IT IS SO ORDERED.

HERNANDEZ, J., concurs. SUTIN, J., specially concurring.