Cason v. Baskin , 159 Fla. 31 ( 1947 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This is an appeal by Plaintiff from a verdict and judgment for defendants, an author and her husband.

When this case was first before this Court, Cason v. Baskin,155 Fla. 198, 20 So. (2) 243, the Court, in a comprehensive opinion prepared by Justice BROWN, held the second count of the declaration stated a cause of action on the theory that the publication by the defendant, author, constituted an unwarranted invasion of plaintiff's right of privacy, such as would authorize the recovery of at least nominal damages. It was further held that malice was not required to be shown by plaintiff; that neither truth, nor the entire absence of malice or wrongful motive on the part of the defendant, constituted any defense; and that plaintiff, under the declaration, did not have to allege or prove any special or pecuniary damages. Hence the law of the cause of action has been heretofore established by this Court.

After the case was remanded, the defendants filed eighteen pleas, and then four amended pleas. The Court, after various rulings, held as sufficient Pleas 1, 3, 11, 14, 16, and Amended Plea 17.

The defendants filed sixty-two interrogatories, directed to the plaintiff. The plaintiff propounded seven interrogatories to the defendants. Amendments to some interrogatories were filed. Answers to certain of the interrogatories were made by the parties. Depositions were taken. Motions were made concerning some of the depositions and were ruled upon by the Court. This warfare by pleading ceased, and the case went to trial before a jury. Some forty witnesses, mostly for the defendant, testified in person or by deposition. The trial lasted eight days.

In view of the conclusion reached in this opinion, it will only be necessary to discuss Amended Plea 17 and some of the evidence offered by the defendant, and by the plaintiff.

The Amended 17th Plea of the defendant is as follows:

"The defendant author has for most of her mature life engaged in journalistic and literary work. Since 1928 the energies and attention of the defendant author have been continuously occupied in the production of books and stories based on the section of Florida in which defendant author lives and on the lives of the people among whom she lives, which books and stories became popular and were widely read throughout the United States and in many foreign countries. Among the books which plaintiff wrote was ``The Yearling,' originally published in April, 1938, which was more popular and more widely praised than any of the defendant author's previous literary work. It was successively published in ten American editions, including an edition issued by Book of the Month Club, a widely recognized organization engaged in the selection of the best book published in America each month and its circulation among numerous members of said organization in the United States and throughout the world. ``The Yearling' was appraised by a recognized American Literary critic as ``a minor American classic, not only as an important piece of regional literature, but as introducing one of the most appealing boy characters since ``Huckleberry Finn.' ``The Yearling' was also published in native language editions in England (2 editions), Spain, France, Finland, Norway (2 editions), Hungary, Poland, Italy, Sweden, Denmark, Germany, Greece and Holland and Japan. The defendant reasonably believed that the public would be interested in her autobiography covering the period of her life in the section of Florida about which the much greater portion of her writings have been done, and so undertook the writing of ``Cross Creek,' which was published in March, 1942, and was her first full length book published after ``The Yearling.' ``Cross Creek' was well received by the literary public and by readers of all classes in the United States and elsewhere. ``Cross Creek' was more extensively read in the United States and England than had been ``The Yearling.' The edition of ``Cross Creek' issued by said Book of the Month Club had a circulation more than three times as large as the circulation of ``The Yearling' by said organization. Both ``The Yearling' and ``Cross Creek' were published in the Armed Services Edition by the Council on Books in War Time, Inc., a non-profit organization of American publishers of general (trade) books, librarians and book-sellers for exclusive distribution to members of the American Armed Services, to supply them in small, convenient and economical form, the best books of the present and past. ``Cross Creek' had a slightly larger circulation in the Armed Services Edition than did ``The Yearling.' The comments on ``Cross Creek' and, particularly, that portion thereof relating to plaintiff quoted in said count, by literary critics and the public generally and members of the American Armed Services throughout the world has been extensive and favorable. The quoted portions of said book ``Cross Creek' of which plaintiff in said count complains was of such a nature that its inclusion in said book should not offend or injure plaintiff or any person of ordinary feelings and intelligence, situated in like circumstances as plaintiff, so written about. The defendant author did not have reason to believe and did not apprehend that the publication of the portions of her said book quoted in said count could or would cause mental distress or injury to plaintiff. By reason whereof the defendants say that the things and people about which the defendant author wrote in said autobiography are matters of legitimate general public interest, and she was privileged to publish the matter complained of under Section 13 of the Declaration of Rights in the Constitution of the State of Florida."

This Amended 17th Plea purports to allege facts showing that the matter published in "Cross Creek" was of legitimate public and general interest, as a result of which the defendant was entitled to file a plea of privilege.

It is true that a person who, by his accomplishments, fame, or mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs, and his character, may be said to have become a public personage, and to that extent he thereby relinquishes at least a part of his right of privacy. Pavesich v. New England Mut. L. Ins. Co., 122 Ga. 190, 50 S.E. 68, 69, L.R.A. 101. There may be a limited scrutiny of the "private life" of any person who has achieved, or who has thrust upon him, the status of a "public figure." Sidis v. F. R. Publishing Corp'n. (CCA.2d 113 F. (2) 806, 138 A. L. R. 15; Certiorari denied in 311 U.S. 711,85 L. ed. 462, 61 S.Ct. 393.

As to who may be deemed a public figure, it has been laid down that any person who engages in a pursuit or occupation which calls for the approval or patronage of the public submits his private life to examination by those to whom he addresses his call, to the extent that may be necessary to determine whether it is wise and proper to accord him the approval or patronage which he seeks. One who engages in public affairs and public life to an extent which draws the public interest upon him may be deemed to have consented to the publication of his picture. Pavesich v. New England Mut. Life Ins. Co., supra, Annotation in 138 A.L.R. 59. The right of privacy was discussed by Warren and Brandeis in 4 Harvard L. Review, pp. 193 to 220, and a text page 21d, as follows:

"The right to privacy does not prohibit any publication of matter which is of public or general interest. . . . The design of the law must be to protect those persons with whose affairs the community has no legitimate concern, from being dragged into an undesirable and undesired publicity and to protect all persons whomsoever; their position or station, from having matters which they may properly prefer to keep private, made public against their will. It is the unwarranted invasion of individual privacy which is reprehended, and to be, so far as possible, prevented."

In analyzing this Amended Plea 17, it does not appear to meet the test set forth by the authorities. The plea seeks to justify the publication of this matter concerning the plaintiff because of the fame of the author, the widespread distribution of the book, the general acceptance of the book by many people, both in America and abroad, and because of the great literary merit and popularity of the book. The Plea does not allege that there was a legitimate general public interest in the plaintiff. The eminence of the defendant as an author and the excellence of her writings afford no basis for her privilege to destroy the right of privacy accorded by law to the plaintiff. Nor can the defendant create a public interest in an area or a community, and thereby justify the invasion of privacy of one who happens to live in that particular area or community.

We, therefore, hold that, because the Plea fails to show that there was any pre-existing legitimate general or public interest in the plaintiff, it fails to present a valid defense to the cause of action, either by way of a plea in bar or by confession and avoidance.

However, the real harm under the 17th Plea was the admission of a great mass of immaterial and prejudicial evidence. Counsel for the defendant contends that the honors which came to the defendant were demonstrative facts showing a wholesome and legitimate public interest in her, her home, and her neighbors. In carrying out this theory of defense, many witnesses were called who paid high tribute to the defendant as an author and as a successful personage. The defendant was asked, on the stand, to turn to Chapter 5 of the book and interpret it as it was written in her mind and heart. In response to such a question she gave a most interesting story of her views, impressions and opinions. She testified that she had received thousands of letters concerning her writings and that an infinitesimal portion were unfavorable.

Many witnesses testified for the defendant. Some were asked to express their opinions as to whether or not the characterization in the book would offend the normal sensibilities of one situated as the plaintiff was situated, and whether or not they considered the portions of the book relating to the plaintiff objectionable. A noted historian testified, as a critic, as to the tremendous importance of this work of the defendant's. He said it gave the defendant more than a national reputation, and unquestionably gave her an international literary reputation as an interpreter of life. He also expressed his opinion of the reaction of the people of Florida to the production of the book, and told of an honorary degree being conferred upon the defendant. A Naval chaplain testified that the reception given "Cross Creek" by service men in the South Pacific, during World War II, was very favorable. A college professor testified he thought that "The Yearling" was a first-rate novel in every way, and stated that it had been awarded the Pulitzer prize in 1938. He evaluated "Cross Creek" most highly and thought the estimation of the plaintiff contained in the book was a most kindly portrait. A prominent lawyer, not otherwise connected with the case, testified that in his opinion he regarded "Cross Creek" as a very accurate character portrayal of the type of people with which it purported to deal, enlivened and enriched by the genius of the writer. Some witnesses who were portrayed in the book testified that they had no objection to the passages of the book relating to them. A sailor in the act of abandoning ship, on the occasion of the sinking of the illustrious USS Lexington, in the South Pacific, stated that at the last moment he went back to his compartment, procured a copy of "Cross Creek" and went over the side, on an order to abandon ship, with his life jacket and a copy of "Cross Creek." The witness did not indicate which he thought was more valuable. A literary agent told of the distribution of the book in foreign lands and of the remuneration received by the defendant. An editor and writer, Chairman of the Board of Judges of the Book of the Month Club, told of the acceptance of some of the books of the defendant. He thought "Cross Creek" was one of the most humorous and kindly, as well as one of the most realistic books of this kind he had ever read, and he further said that the book reviews involving "Cross Creek" were definitely favorable. The eminent publisher of "Cross Creek" testified that the book sold for $2.50, with the trade getting an average of 42% discount and the defendant 15% of the gross. He said the publication of the book had been profitable, but that it had been published and distributed with knowledge that one or more persons described in the book had not consented to the publication. A manager of a firm that prepared books for service men testified that over 50,000 copies were distributed in 1944 and over 140,000 copies in 1945. Another editor, who had been with the publisher thirty-six years, stated that in going over the preliminary drafts of the book he raised questions about material to which there was likely to be objection by any of the characters presented. These were objections as to whether they would be offended, or, in some cases, whether there would be possible action for libel. He stated he did not think that many modifications were made. Other witnesses testified as to their high regard for the book. The defendant also called a number of witnesses concerning the affairs and activities of the plaintiff. This evidence failed to show that she had ever, by course of conduct or otherwise, lost her right of privacy, or that she was other than a person who lived a quiet and private life, free from the prying curiosity which accompanies either fame or notoriety, until the publication of "Cross Creek."

Many exhibits were offered by the defendant, including a copy of "Cross Creek"; an honorary degree citation; copy of a booklet issued in connection with the Florida Centennial; citation from a university, when the degree of Doctor of Literature had been conferred upon Mrs. Baskin; two pictures of the Rawlings Literary Room, at another university, one being a picture of a mural depicting a boy and a deer jumping a stream; copy of defendant's write-up in "Who's Who"; citation and honorary degree conferred upon the defendant by a university; excerpts from the Minutes of the Board of Public Instruction of Alachua County, as to the plaintiff; photographs of the defendant's home, and a number of book reviews clipped from various publications.

Personal rights of the plaintiff are not to be tested by the status or identity of the defendant. The whole force and trend of the defendant's evidence was to exalt and praise the defendant and to establish her great prominence — when that was not an issue in the case. No legitimate or general public interest in the defendant alone can justify an invasion of the right of privacy of another, who has in no sense of the word consented to that invasion or waived her rights.

We, therefore, conclude that this evidence was prejudicial to a fair trial of this cause. It tended to confuse the jury and withdraw its consideration from the issue as to whether or not the plaintiff was one concerning whom there was a general and legitimate public interest, rather than defendant. Hence the judgment for the defendant should be reversed.

A consideration of the evidence as a whole, however, fails to show that plaintiff has offered any substantial evidence to show that she is entitled to any actual or compensatory damages. Her health has not been impaired — in fact she gained some twenty pounds in weight since the book was published. Plaintiff did testify that she had been teased about the book, and that she had discontinued the use of "Zelma," using the words "Miss Cason" when she answered the telephone, and that she thought the publication of the book had upset her. There was no mental anguish — no loss of friends or respect in the community — no injury to character or reputation. The evidence fails to show any malice on the part of the defendant and fails to show that plaintiff has sustained any substantial injury.

Under Section 59.34, Florida Statutes, 1941, it is the duty of the appellate court to examine the record on appeal and to give such judgment as the court below should have given, or as to it may appear according to law. In Tampa Electric Co. v. Ferguson, 93 Fla. 375, 118 So. 211, the Court held in a tort action, in which a verdict had been rendered for the defendant, that there was ample evidence to support the finding that plaintiff sustained no substantial injury whatsoever, and directed that a judgment be entered for the plaintiff for nominal damages. Where nominal damages go to establish some question of permanent right, or entitle plaintiff to costs, a new trial may be awarded for an erroneous failure to give nominal damages. 8 A. E. Encyl. of L., 2d ed., 360; Kirkland v. City of Gainesville, 122 Fla. 765, 166 So. 460.

This case has been in the courts for almost four and one-half years. No doubt the parties have expended a considerable sum in the course of this litigation, preparing the case for trial and in having counsel attend to the many matters that necessarily arise in a case of this nature and that are essential to the prosecution or the defense. It is the desire of courts to bring an end to litigation at the earliest possible date, in so far as this can be accomplished under established principles of law.

We, therefore, hold that, while the evidence vindicates plaintiff, in establishing a wrongful invasion of her right of privacy, and shows no justification for the invasion of this right by the defendant author, yet it does not show that the plaintiff has thereby sustained any actual or compensatory damage as a result of the publication by defendant, nor is she entitled to punitive damages.

The final judgment is reversed, and a new trial is ordered granted, with directions that plaintiff recover only nominal damages and all costs.

Reversed.

THOMAS, C. J., BUFORD and BARNS, JJ., concur.

TERRELL, CHAPMAN and ADAMS, JJ., dissent.