Imagens das páginas


of the defendants,

but makes it visions of our law as to judgments in legal depend solely upon the existence of a proceedings, the objection urged by the Alamutual indebtedness between one or more of bama court to a judgment for one of the the persons suing and one or more of the defendants for the excess of his set-off persons sued. To illustrate my view of the would not apply. Once the facts statute, suppose A, B, and C indebted to E definitely ascertained, a judgment to fit in $1,000, and E at the same time indebtedl those facts can easily be framed. And to to A in the like sum of $1,000. A sues E the possible objection that the allowance of for the debt. Can E set off the debt due to individual set-offs of one or more defend. him from A, B, and C? Certainly. Why? ants would give rise to difficulty in the Because there exists between him and the framing of a judgment to fit the facts it, plaintiff a mutual indebtedness. Each owes may be replied that the difficulty is one the other a debt, and, the law having made more of arithmetic than of law. Say that the debt of A, B, and C several as well as A is plaintiff in an action on a promissory joint, E has an election to treat it as the note for $100 executed by B and indorsed individual debt of A, and, so regarding it, respectively by C, D, and E. A owes C there is certainly, in the most strict under- $ 100, D $200, and E $300. Each of the standing of the term, a mutuality of indebt- defendants answers separately or jointly, as edness between the parties A and E. But the case may be, setting off his individual suppose the suit brought by E against A, demand against the plaintiff, and the B, and C, would not the same mutuality of verdict of the jury is in favor of their conindebtedness exist between A and E? I tentions. The cross-demand of only one of answer that it would, and that, according to the defendants could be applied to the exthe letter as well as the spirit of the stat- tinguishment of the note sued on, for the ute, A would have a legal right to set off application of a set-off is in the nature of the debt due to him from E.” Attention is a payment, and, of course, the original directed to the similarity of the Arkansas claim could only be legally paid once. But statute under discussion by the learned the other defendants, having been haled into chief justice and our own, and to the fact court, and having, under the law, set up that in both the requirement of the law is their counterclaim, would have the right to that the demands shall be mutual. And in stay in court until their rights were adthe subsequent case of Lcach v. Lambeih,

And 14 Ark. 668, the principle laid down by the

judicated. so judgment might be majority in Trammell v. Harrell was over

entered generally in favor of the defendant ruled, and by a unanimous decision the C, thus releasing the maker of the note, B views expressed by the chief justice in his and the other indorsers, D and E, and in dissenting opinion in that case were adopt- favor of D and E, against the plaintiff reed as the law applicable to the subject spectively for $200 and $300. under discussion. See also Burke v. Still

In Threlkeld v. Dobbins, 45 Ga. 144, re. well, 23 Ark. 294. And for decisions of lied on as authority by counsel for the deother states to a like effect, sce Pitcher v. fendant in error, Judge McCay said: Patrick, Minor (Ala.) 321, 12 Am. Dec. 51; 1 “Independently of the settled rule, under Carson v. Barnes, 1 Ala. 93; Sledge v. the English statutes of set-off, our Code Swift, 53 Ala. 110; Huddleston v. Askey, 56 provides that set-off must be between the Ala. 218; Riley v. Stallworth, 56 Ala. 481; same parties, and in their own right. Code, Locke v. Locke, 57 Ala. 475; Childerston v. $ 2850. This section of the Code, however, Hammon, 9 Serg. & R. 68; Robinson v. recognizes some special exceptions. Two Beall, 3 Yeates, 267; Miller v. Kreiter, 70 are mentioned, to wit, the case of a survivPa. 78; Dunn v. West, 5 B. Mon. 377. In ing partner, and a debt due to the principal Locke v. Lockc, 57 Ala. 475, the following in a suit against the principal and selanguage is used: "If, as the verdict tends curity.” Tracing back the latter of the two to show, the set-off was due to only one of called exceptions to its origin, we have the defendants, this would constitute a good reached the conclusion that, instead of defense to plaintiff's action, but would not being an exception to the rule, it is within authorize a recovery for the excess, for the the rule recognized in Georgia from the bereason that such recovery would require a ginning in regard to the law of set-off. The change, to that extent, of the parties to the original act allowing set-off under the law judgment. In fact, it would, in effect, re- of Georgia was passed in 1799, being part quire two judgements; one in favor of one of the judiciary act. Prince's Dig. 425. It defendant for the certified balance, and the contained no reference whatever to suits other in favor of all the defendants for the against principal and security. costs of the suit. This cannot be clone in vision of the Code referred to by Judge Mclegal proceedings." Under the liberal pro. (ay, which is now a part of Civil Code 1895,

The pro



§ 3747, made its appearance for the first Paolo PAVESICH, Puff. in Err., time in Code 1863, § 2842, and was evidently codified from the decision of this court in NEIV ENGLAND LIFE INSURANCE the early case of Harrison v. Henderson, 4

COMPANY et al. Ga. 198. It was there held that in an action against principal and surety the

(...... Ga. principal might set off his individual demand against the plaintiff. In the opinion *1. The absence, for a long period of (p. 199) Judge Warner, after discussing the

time, of a precedent for an asserted

right is not conclusive evidence that the right act of 1799, authorizing the plea of set-off,

does not exist. Where the case is new in and quoting therefrom, said: “The ob

principle, the courts cannot give a remedy, jection urged against the set-off is that the

but, where the case is new only in instance, demand of the plaintiff is a joint demand, it is the duty of the courts to give relief by and the debt offered to be set off is the

the application of recognized principles. separate demand of Harrison against the

2. A right of privacy is derived from

natural law, recognized by municipal law, plaintiff. It is true, as a general rule,

and its existence can be inferred from exthat a separate demand cannot be set off

pressions used by commentators and writers against a joint demand; but the plaintiff's on the law as well as judges in decided cases. demand here is several as well as joint. 3. The right of privacy is embraced We must look to the original character of

within the absolute rights of personal secuthe contract; for the plaintiff, by pursuing

rity and personal liberty. his remedy against them as joint con

4. Personal security includes the right

to exist, and the right to the enjoyment of tractors, does not alter the original char

life while existing, and is invaded, not only acter of the contract itself. When we look by a deprivation of life, but also by a deprivaat the contract, we see it is the separate tion of those things which are necessary to contract of Harrison with the plaintiff, se

the enjoyment of life according to the nature, cured by the joint security of Sims.” It

temperament, and lawful desires of the in

dividual. will thus be seen that under the statute of

3. Personal liberty includes, not only set-off as originally enacted, which has not

freedom from physical restraint, but been amended in this respect, it

also the right “to be let alone;" to derecognized that in a suit on a several obli- termine one's mode of life, whether it shall gation the defense was available to any one

be a life of publicity or of privacy; and to

order one's life and manage one's affairs in or more of the defendants; and the sub

a manner that may be most agreeable to him sequent codification of this decision certain

so long as he does not violate the rights of ly did not operate to alter its effect. It others or of the public. will thus be seen that it is quite erroneous 6. Liberty of speech and of the press, to argue that, because the codifiers have when exercised within the bounds of the connamed two specific instances in which one

stitutional guaranties, are limitations upon or more of several codefendants may plead 7. The Constitution declares that the

the exercise of the right of privacy. set-off, the plea cannot be interposed in any

liberty of speech and of the press other case where more than one defendant

must not be abused, and the law will is sued in the same action.

not permit the right of privacy to be asWe have discussed this question at such serted in such a way as to curtail or restrain

such liberties. great length, not only because of the appar

The one may be used to keep

the other within lawful bounds, but neither ent doubt cast upon it by the decision in

can be lawfully used to destroy the other. the case of Threlkeld v. Dobbins, but also on

8. The right of privacy may be waived, account of its far-reaching importance to either expressly or by implication, except as the commercial world. Applying what has to those matters which law or public policy been said to the facts of this case, our con

demands shall be kept private, but a waiver clusion is that, the contract of Williams

authorizes an invasion of the right only to

such an extent as is to be necessarily inferred and that of Mrs. Wilson being several, it

from the purpose for which the waiver is was competent for the latter to set off her

made. A waiver for one purpose, and in individual claim against that of the plain- favor of one person or class, does not authortiff.

ize au invasion for all purposes, or by all 2. The defendant, May C. Wilson, having persons and classes. filed a valid plea of set-off, the plaintiff

' 9. One who seeks public office, or any could not, without making some sort of

person who claims from the public

approval or patronage, waires his showing, dismiss its action


right of privacy to such an extent that he prejudice her right to a hearing on the

caunot restrain or impede the public in any claim set up in her plea. Civil Code 1895, $$ 3754, 4970; Simon v. JIyers, 68 Ga. 76. *lleadnotes by COBB, J. Judgment reversed.

NOTE. As to the right of privacy, see also,

in this series, Roberson v. Rochester Folding All the Justices concur.

Box Co. 39 L. R. A. 178, and footnote thereto.

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proper investigation into the conduct of his / which would be easily recognized by his private life which may throw light upon the friends and acquaintances, placed by the question as to whether the public should be side of the likeness of an ill-dressed and stow upon him the office which he seeks, or accord to him the approval or patronage

sickly looking person.

Above the likeness which he asks. The holder of public office of the plaintiff were the words: “Do it makes a waiver of a similar nature, and sub

The man who did.” Above the likejects his life at all times to closest scrutiny, ness of the other person were the words: in order that it may be determined whether “Do it while you can. The man who didn't."

the rights of the public are safe in his hands. 10. The conclusion and reasoning of Below the two pictures were the words:

the majority in the case of Roberson "These two pictures tell their own story." v. Rochester Folding Box Company, Under the plaintiff's picture the following 64 N. E. 442, 59 L. R. A. 478. 89 Am. St. Rep. appeared: “In my healthy and productive 828, 171 N. Y. 540, criticized and disap- period of life I bought insurance in the New proyed; and the reasoning of Judge Gray, in his dissenting opinion, adopted and followed. England Mutual Life Insurance

Co., of 11. The publication of a picture of a

Boston, Mass., and to-day my family is properson, without his consent, as a part of tected and I am drawing an annual dividend an advertisement, for the purpose of exploit-on my paid-up policies.” Under the other ing the publisher's business, is a violation of person's picture was a statement to the efthe right of privacy of the person whose fect that he had not taken insurance and picture is reproduced, and entitles him to

now realized his mistake. The statements recover, without proof of special damage. 12. The publication of one's picture, were signed, “Thomas B. Lumpkin, General

without his consent, for such a purpose, Agent.” The picture of the plaintiff was is in no sense an exercise of the liberty of taken from a negative obtained by the despeech or of the press, within the meaning of fendant Lumpkin, or one by him those terms as used in the Constitution.

authorized, from the defendant Adams, 13. Words which are harmless in them which was used with his consent, and with

selves may be libelous in the light of extrinsic facts.

knowledge of the purpose for which it was 14. A publication which imputes to one

to be used. The picture was made from the language which is known to those among negative without the plaintiff's consent, at whom he lives to contain statements which the instance of the defendant insurance are false is libelous.

company, through its agent, Lumpkin. 15. A publication of an advertisement Plaintiff is an artist by profession, and the

of an insurance company, containing a person's picture, and a statement that the publication is peculiarly offensive to him. person has policies of insurance with the The statement attributed to plaintiff in the company, and is pleased with his investment, publication is false and malicious. He when in fact he has no such policies, is libel- never made any such statement, and has ous, as having a tendency to create the im not, and never has had, a policy of life inpression among those who know the facts that the person whose picture is reproduced

surance with the defendant company. The has told a wilful falsehood, either gratui- publication is malicious, and tends to bring tously, or for a consideration.

plaintiff into ridicule before the world, and 16. The petition was good as against a especially with his friends and acquaint

general demurrer, and the objections raised ances, who know that he has no policy in in the special demurrer were without merit. the defendant company. The publication is (March 3, 1907.)

a “trespass upon plaintiff's right of privacy, ER RROR to the City Court of Atlanta to and was caused by breach of confidence and

review a judgment in favor of defend trust reposed” in the defendant Adams. The ants in an action brought to recover dam- prayer was for damages in the sum of $25,ages for the alleged infringement of plain-000. The petition was demurred to generaltiff's rig

of privacy by the unauthorized ly, and specially on the grounds that there publication of his portrait and alleged

was a misjoinder of defendants and causes libelous matter in connection therewith. of action, that no facts were set forth from Reversed.

which malice can be inferred, and that no

special damages were alleged. The court Statement by Cobb, J.:

sustained the general demurrer, and the Paolo Pavesich brought an action against plaintiff excepted. the New England Mutual Life Insurance Company, nonresident corporation, Messrs. Westmoreland Brothers and Thomas B. Lumpkin, its general agent, and M. M. Hirsh for plaintiff in error. J. Q. Adams, a photographer, both residing Messrs. John L. Hopkins & Sons, for in the city of Atlanta. The allegations of defendants in error: the petition were, in substance, as follows: To charge one with doing a thing which In an issue of the Atlanta Constitution, a the law authorizes to be done can never be newspaper published in the city of Atlanta, the subject matter of a libel. there appeared a likeness of the plaintiff, Hollenbeck v. Hall, 103 Iowa, 214, 39 L.

a а

R. A. 734, 64 Am. St. Rep. 175, 72 N. W. protect against invasion. It is to be con518.

ceded that prior to 1890 every adjudicated A libel must be, first, a false and ma case, both in this country and in England, licious defamation, and, secondly, the repu- which might be said to have involved a tation of the individual libeled must be right of privacy, was not based upon the injured by exposing him to public hatred, existence of such right, but was founded contempt, and ridicule.

upon a supposed right of property, or a Code, 3832.

breach of trust or confidence, or the like, So the word "defamation” implies, first, and that therefore a claim to a right of that the individual possessed good fame, privacy, independent of a property or conand, secondly, that the thing written of tractual right, or some right of a similar him withdrew from him a portion of this, nature, had, up to that time, never been leaving him upon the whole with less than recognized in terms in any decision. The he had at first.

entire absence for a long period of time, False statements which tend to promote even for centuries, of a precedent for an asthe good character of a man, and do not in serted right should have the effect to cause fact defame or injure, are not actionable. the courts to proceed with caution before

Legg v. Dunleavy, 80 Mo. 558, 50 Am. recognizing the right, for fear that they Rep. 512; Dun v. Maier, 27 C. C. A. 100, may thereby invade the province of the law52 U. S. App. 381, 82 Fed. 169.

making power; but such absence, even for An innuendo cannot introduce new mat- all time, is not conclusive of the question as ter, nor change the natural meaning of the to the existence of the right. The novelty words.

of the complaint is no objection, when an Watters v. Retail Clerks' Union, No. 479, injury cognizable by law is shown to have 120 Ga. 424, 47 S. E. 911.

been inflicted on the plaintiff. In such a The publication must have a personal, case, “although there be no precedent, the and not an impersonal, application. common law will judge according to the Stewart v. Wilson, 23 Minn. 449.

law of nature and the public good.” Where The right of privacy has been repudiated the case is new in principle, the courts have by every court of last resort that has con no authority to give a remedy, no matter sidered the subject-matter.

how great the grievance; but where the Schuyler v. Curtis, 27 Abb. N. C. 387, 15 case is only new in instance, and the sole N. Y. Supp. 787, 64 Hun, 594, 19 N. Y. question is upon the application of Supp. 264, 30 Abb. N. C. 376, 24 N. Y. Supp. recognized principle to a new case, “it will 509, 147 N. Y. 434, 31 L. R. A. 286, 49 Am. be just as competent to courts of justice to St. Rep. 671, 42 N. E. 22; Marks v. Jaffa, apply the principle to any case that may 6 Misc. 290, 26 N. Y. Supp. 908; Murray v. arise two centuries hence as it was two Gast Lithographic & Engraving Co. 8 Misc. centuries ago.” Broom's Legal Maxims, 8th 36, 28 N. Y. Supp. 271; Roberson v. Roch- ed. 193. This results from the application ester Folding Box Co. 171 N. Y. 540, 59 L. of the maxim, Ubi jus ibi remedium, R. A. 478, 89 Am. St. Rep. 828, 64 N. E. which finds expression in our Code, where 442; Atkinson v. John E. Doherty & Co. 121 it is declared that "for every right there Mich. 372, 46 L. R. A. 219, 80 Am. St. Rep. shall be a remedy, and every court having 307, 80 N. W. 285.

jurisdiction of the one may, if necessary,

frame the other.” Civil Code 1895, § 4929. Cobb, J., delivered the opinion of the The individual surrenders to society many court:

rights and privileges which he would be free 1-12. The petition really contains two to exercise in a state of nature, in exchange counts,- one for libel, and the other for 2 for the benefits which he receives as a memviolation of the plaintiff's right of privacy. ber of society. But he is not presumed to There was no special demurrer raising the surrender all those rights, and the public objection that the counts were not proper- has no more right, without his consent, to ly arranged, as there was in Cooper v. invade the domain of those rights which it Portner Brewing Co. 112 Ga. 894, 38 S. E. is necessarily to be presumed he has 91; and hence the petition is to be dealt served, than he has to violate the valid with in relation to its substance, without regulations of the organized government. reference to its form.

under which he lives. The right of privacy We will first deal with the general demur- has its foundation in the instincts of nature. rer to the second count, which claimed dam- It is recognized intuitively, consciousness ages on account of an alleged violation of being the witness that can be called to the plaintiff's right of privacy. The ques. establish its existence. Any person whose tion therefore to be determined is, whether | intellect is in a normal condition recognizes an individual has a right of privacy which at once that, as to each individual member he can enforce, and which the courts will of society, there are matters private, and




there are matters public so far as the indi- | fully accorded by allowing an individual to vidual is concerned. Each individual as in- go through life in possession of all of his stinctively resents any encroachment by the members, and his body unmarred; nor is his public upon his rights which are of a right to personal liberty fully accorded by private nature as he does the withdrawal of merely allowing him to remain out of jail, those of his rights which are of a public or free from other physical restraints. The nature. A right of privacy in matters pure- liberty which he derives from natural law, ly private is therefore derived from natural and which is recognized by municipal law, law. This idea is embraced in the Roman's embraces far more than freedom from physconception of justice, which "was not simply ical restraint. The term “liberty” is not the external legality of acts, but the accord to be so dwarfed, “but is deemed to embrace of external acts with the precepts of the the right of a man to be free in the enjoy. law, prompted by internal impulse and free ment of the faculties with which he has been volition.” Mackeldey's Roman Law, by endowed by his Creator, subject only to such Dropsie, $ 123. It may be said to restraints as are necessary for the common arise out of those laws sometimes char. welfare. 'Liberty,' in its broad sense, as acterized as “immutable,” because they understood in this country, means the right. are natural, and so just at all times not only of freedom from servitude, imprisand in all places that authority onment, or restraint, but the right of one to can either change or abolish them.” 1 use his faculties in all lawful ways, to live Domat’s Civil Law, by Strahan, Cushing's and work where he will, to earn his livelied. p. 49. It is one of those rights referred hood in any lawful calling, and to pursue to by some law writers as "absolute,”– any lawful trade or avocation.” See Bran"such as would belong to their persons non, Fourteenth Amendment, 111. Liberty merely in a state of nature, and which every includes the right to live as one will, so man is entitled to enjoy, whether out of long as that will does not interfere with society or in it.” 1 Bl. Com. 123. Among the rights of another, or of the public. One the absolute rights referred to by the com- may desire to live a life of seclusion; an. mentator just cited is the right of personal other may desire to live a life of publicity: security and the right of personal liberty. still another may wish to live a life of priIn the first is embraced a person's right to vacy as to certain matters, and of publicity a "legal and uninterrupted enjoyment of his as to others. One may wish to live a life of life, his limbs, his body, his health, and his toil, where his work is of a nature that reputation;" and in the second is embraced keeps him constantly before the public gaze, “the power of locomotion, of changing sit- while another may wish to live a life of reuation, or moving one's person to whatso- search and contemplation, only moving beever place one's own inclination may direct, fore the public at such times and under such without imprisonment or restraint, unless circumstances as may be necessary to his by due course of law.” 1 Bl. Com. 129, 134. actual existence. Each is entitled to a lib

While neither Sir William Blackstone nor erty of choice as to his manner of life, and any of the other writers on the principles neither an individual nor the public has a of the common law have referred in terms right to arbitrarily take away from him this to the right of privacy, the illustrations giv- liberty. See, in this connection, Cyc. Law en by them as to what would be a violation Dict. (Shumaker & Longsdorf), and Bouof the absolute rights of individuals are not vier, Law Dict., title Liberty. All will adto be taken as exhaustive, but the language mit that the individual who desires to live should be allowed to include any instance a life of seclusion cannot be compelled, of a violation of such rights which is clear- against his consent, to exhibit his person in ly within the true meaning and intent of the any public place, unless such exhibition is words used to declare the principle. When demanded by the law of the land. He may the law guarantees to one the right to the be required to come from his place of seenjoyment of his life, it gives to him some clusion to perform public duties,—to serve thing more than the mere right to breathe as a juror, and to testify as a witness, and and exist. While, of course, the most fla- the like; but, when the public duty is once

grant violation of this right would be depri- performed, if he exercises his liberty to go · vation of life, yet life itself may be spared, again into seclusion, no one can deny him and the enjoyment of life entirely destroyed. the right. One who desires to live a life An individual has a right to enjoy life in of partial seclusion has a right to choose any way that may be most agreeable and the times, places, and manner in which and pleasant to him, according to his tempera- at which he will submit himself to the pubment and nature, provided that in such en- | lic gaze. Subject to the limitation above joyment he does not invade the rights of referred to, the body of a person cannot be his neighbor, or violate public law or pol- put on exhibition at any time or at any icy. The right of personal security is not place without his consent. The right of

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