Imagens das páginas

an insurmountable stumbling block in the path that leads to a recognition of the right which would give to persons like the plaintiff in this case and the young woman in the Roberson Case redress for the legal wrong, or what is by some of the law writers called the outrage, perpetrated by the unauthorized use of their pictures for advertising purposes.

What we have ruled cannot be in any sense construed as an abridgment of the liberty of speech and of the press as guaranteed in the Constitution. Whether the reproduction of a likeness of another which is free from caricature can in any sense be declared to be an exercise of the right to publish one's sentiments, certain it is that one who, merely for advertising purposes, and from mercenary motives, publishes the likeness of another without his consent, cannot be said, in so doing, to have exercised the right to publish his sentiments. The publication of a good likeness of another, accompanying a libelous article, would give a right of action. The publication of a caricature is generally, if not always, a libel. Whether the right to print a good likeness of another is an incident to a right to express one's sentiments in reference to a subject with which the person whose likeness is published is connected, is a question upon which we cannot, under the present record, make any authoritative decision; but it would seem that a holding that the publication of a likeness under such circumstances without the consent of the person whose likeness is published would be giving to the word "sentiment” a very extended meaning. The use of a pen portrait might be allowable in some cases where the use of an actual portrait was not permissible. There is in the publication of one's picture for advertising purposes not the slightest semblance of an expression of an idea, a thought, or an opinion, within the meaning of the constitutional provision which guarantees to a person the right to publish his sentiments on any subject. Such conduct is not embraced within the liberty to print, but is a serious invasion of one's right of privacy, and may in many cases, according to the circumstances of the publication and the uses to which it is put, cause damages to flow which are irreparable in their nature. The knowledge that one's features and form are being used for such a purpose, and displayed in such places as such advertisements are often liable to be found, brings not only the person of an extremely sensitive nature, but even the individual of ordinary sensibility, to a realization that his liberty has been taken away from him; and, as long as the advertiser uses him for these purposes, he cannot be otherwise than

exercising a profession which places him before the public, or by engaging in a business which has necessarily a public nature, gives to everyone the right to print and circulate his picture. To use the language of Hooker, J., in Atkinson v. John E. Doherty & Co. 121 Mich. 372, 46 L. R. A. 219, 80 Am. St. Rep. 507, 80 N. W. 285: "We are loath to believe that the man who makes himself useful to mankind surrenders any right to privacy thereby, or that, because he permits his picture to be published by one person and for one purpose, he is forever thereafter precluded from enjoying any of his rights." It may be that the aspirant for public office, or one in official position, impliedly consents that the public may gaze, not only upon him, but upon his picture, but we are not prepared now to hold that even this is true. It would seem to us that even the President of the United States, in the lofty position which he occupies, has some rights in reference to matters of this kind which he does not forfeit by aspiring to or accepting the highest office within the gift of the people of the several states. While no person who has ever held this position, and probably no person who has ever held public office, has even objected, or ever will object, to the reproduction of his picture in reputable newspapers, magazines, and periodicals, still it cannot be that the mere fact that a man aspires to public office or holds public office subjects him to the humiliation and mortification of having his picture displayed in places where he would never go to be gazed upon, at times when, and under circumstances where, if he were personally present, the sensibilities of his nature would be severely shocked. If one's picture may be used by another for advertising purposes, it may be reproduced and exhibited anywhere. If it may be used in a newspaper, it may be used on a poster or a placard. It may be posted upon the walls of private dwellings or upon the streets. It may ornament the bar of the saloon keeper or decorate the walls of a brothel. By becoming a member of society neither man nor woman can be presumed to have consented to such uses of the impression of their faces and features upon paper or upon canvas. The conclusion reached by us seems to be so thoroughly in accord with natural justice, with the principles of the law of every civilized nation, and especially with the elastic principles of the common law, and so thoroughly in harmony with those principles as molded under the influence of American institutions, that it seems strange to us that not only four of the judges of one of the most distinguished and learned courts of the Union, but also lawyers of learning and ability, have found

conscious of the fact that he is for the time being under the control of another, that he is no longer free, and that he is in reality a slave, without hope of freedom, held to service by a merciless master; and if a man of true instincts, or even of ordinary sensibilities, no one can be more conscious of his enthrallment than he is.

the mind of the reader who is acquainted with the extrinsic facts a meaning which will be calculated to expose the person about whom the words are used to contempt or ridicule, then such harmless words become libelous, and an action is well brought, although no special damages may be alleged. Behre v. National Cash Register Co. 100 Ga. 213, 62 Am. St. Rep. 320, 27 S. E. 986; Holmes v. Clisby, 118 Ga. 823, 45 S. E. 684: Central R. Co. v. Sheftall, 118 Ga. 865, 45 S. E. 687.

So thoroughly satisfied are we that the law recognizes, within proper limits, as a legal right, the right of privacy, and that the publication of one's picture without his consent by another as an advertisement, for the mere purpose of increasing the profits and gains of the advertiser, is an invasion of this right, that we venture to predict that the day will come that the American bar will marvel that a contrary view was ever entertained by judges of eminence and ability, just as in the present day we stand amazed that Lord Coke should have combated with all the force of his vigorous nature the proposition that the court of chancery had jurisdiction to entertain an application for injunction to restrain the enforcement of a common-law judgment which had been obtained by fraud, and that Lord Hale, with perfect composure of manner and complete satisfaction of soul, imposed the death penalty for witchcraft upon ignorant and harmless women.

It is alleged that the plaintiff did not have, and never had had, a policy of insurance with the defendant company, and that this fact was known to his friends and acquaintances. In the light of these allegations, the words attributed to the plaintiff become absolutely false, and those who are acquainted with the facts, upon reading the statement, would naturally ask, "For what purpose was this falsehood written?” It was either gratuitous, or it was for a consideration; and, whichever conclusion might be reached, the person to whom the words were attributed would become contemptible in the mind of the reader. He would become at once a self-confessed liar. If he lied gratuitously, he would receive and merit the contempt of all persons having a correct conception of moral principles. If he lied for a consideration, he would become odious to every decent individual. See Colvard v. Black, 110 Ga. 643, 36 S. E. 80. It seems clear to us that a jury could find from the facts alleged that the publication, in the light of the extrinsic facts, was libelous, and the plaintiff was entitled to have this question submitted to the jury. Beazley v. Reid, 68 Ga. 380; Holmes v. Clisby, 121 Ga. 241, 104 Am. St. Rep. 103, 48 S. E. 934.

13-15. It is now to be determined whether what may be called the first count in the petition set forth a cause of action for libel, as against a general demurrer. The publication did not mention the plaintiff's name, but it did contain a likeness of him that his friends and acquaintances would readily recognize as his, and the words of the publication printed under the likeness were put into the mouth of him whose likeness was published. It was, so far as his friends and acquaintances were 16. Having reached the conclusion that concerned, the same as if his name had been each count in the petition set forth a cause signed to the printed words. In these of action as against a general demurrer, it words he was made to say, in effect, that remains now to be determined whether any he had secured insurance with the defendant of the objections raised in the special decompany; that on this account his family murrer were well taken. It is said that were protected, and he was receiving an in- there was a misjoinder of parties in that come from an annual dividend on paid-up | Adams should not be joined with the other policies. These words are harmless in defendants, or either of them, in the count themselves. Standing alone, they contain for libel or the count for a violation of the nothing, and carry no inference of anything right of privacy. The allegations of the that is disgraceful, to be ashamed of, or petition are sufficient to show that the calculated to bring one into reproach. three defendants were joint wrongdoers, and When, in an action for libel, the words de- were therefore not improperly joined in the clared on are harmless in themselves, and same action. A further objection was that the petition alleges no extrinsic fact which there was a misjoinder of causes of action, would show that the words might be taken in that there was an attempt to join a cause in other than their ordinary sense, a cause of action ex delicto (the libel) with a cause of action for a libel is not sufficiently set of action ex contractu (the violation of the forth. Stewart v. Wilson, 23 Minn. 449. right of privacy). While the petition does If, in the light of extrinsic facts, words ap- allege that the violation of the right of parently harmless are such as to convey to privacy was the result of a breach of trust

or confidence reposed in Adams, still it is distinctly charged that it is a trespass upon his right of privacy; and, construing the petition as a whole, it is manifest that the pleader intended to bring an action for a tort. It was further objected that no facts were alleged from which the charge of malice can be legally drawn, and that it did not appear from the allegations of the petition that any ridicule befell petitioner by reason of the publication. The publication, in the light of the extrinsic facts, being a libel, the law would infer malice, and it was not necessary to allege that any ridicule actually befell the petitioner; all that is necessary to constitute the publication a libel being that the statements should be of such a character as had a tendency to bring the plaintiff into contempt or ridicule. The court erred in dismissing the petition. Judgment reversed.

All the Justices concur.

[ocr errors]
[ocr errors]

the Court for Bartow

County to review a judgment convicting defendant of gaming. Affirmed.

The facts are stated in the opinion. Messrs. W. M. Graham and W. I. Heyward, for plaintiff in error:

That the rules of the game require the party beaten to pay the table fee does not constitute playing for money.

Willis Hopkins, Mose Reed, and Creek Kincaid were indicted for playing and betting "together for money or other things of

Willis HOPKINS, Impleaded, etc., Plff. in value at a pool table." On the trial of Hop



STATE of Georgia. (........ Ga........

*Playing pool under an agreement among the players that the one losing the game shall pay for the use of the table is betting at a pool.table, within the

kins, the witness introduced in behalf of the
state testified that he saw Hopkins and the
other two defendants play several games of
pool together, at the time and place charged
in the indictment, "The price of each game
being 15 cents; the same being 5 cents a
cue for each player using a cue. Under
an agreement between the players, the one
losing the game-that is, the one putting
the least number of balls in the pockets-
was to pay for the game. Several games
were played in this way, the losing party

meaning of Penal Code 1895, § 401, providing
that, "if any person shall
at any
pool table, he shall be
guilty of a misdemeanor." The fact that

the state imposes a specific tax on the keeper always paying for the game. The pool table

of a pool table does not affect the question.

(March 25, 1905.)

was run and owned by Henry Kay, but he was not playing." Hopkins was found guilty. His motion for a new trial being overruled, he excepted.

The question whether playing a game such as billiards, pool, tenpins, etc., under an agreement among the players that the loser is to pay the rent or charge imposed by the keeper of the table or alley for its use, is gaming, has never been decided by this court. There is an irreconcilable conflict of authority among the courts of other states where this question has arisen. In State v. Records, 4 Harr. (Del.) 554, it was held to be betting, where the players at tenpins risked only the price of the game. In State v. Leighton, 23 N. H. 167, the defendants were indicted for unlawfully keeping a gaming place "for money, hire, gain, and reward." At the trial it appeared that it was contrary to the rules of the room to

Headnote by FISH, P. J.

NOTE.-For a case in this series holding that an agreement by the owners of race horses to divide equally all premiums and stake money offered on races, awarded to any of the horses, is not void as a wagering contract, see Hank-play for money, but that it was the general

ings v. Ottinger, 40 L. R. A. 76.

custom for the party defeated in a game to pay for the use of the table, for which the

Williams v. State, 12 Smedes & M. 58; Pryor v. Com. 2 Dana, 298; McAuly v. State, 7 Yerg. 526; Garner v. State, 5 Yerg.

As to legality of betting generally, see Bernard v. Taylor, 18 L. R. A. 859, and note.

160; Anthony v. State, 4 Humph. 85; Iseley v. State, 8 Blackf. 403; Hale v. State, 8 Tex. 171; Jackson v. State, 4 Ind. 560; Harbaugh v. People, 40 Ill. 294; Blewett v. State, 34 Miss. 606; People v. Sergeant, 8 Cow. 140.

To constitute gaming one must expect profit by the game.

Blewett v. State, 34 Miss. 614.

Mr. Sam P. Maddox, for defendant in error:

Playing for the price of the game is gambling.

Desty, Criminal Law, § 101 B; State v. Book, 41 Iowa, 550, 20 Am. Rep. 609; Ward v. State, 17 Ohio St. 32; Mount v. State, 7 Ind. 654; State v. Bishel, 39 Iowa, 42.

That such tables were licensed makes no difference.

State v. Doon, R. M. Charlt. (Ga.) 1.

Fish, P. J., delivered the opinion of the court:

defendants charged a shilling per game. It was held that this was a gaming for money. The court said: "The defendants in this case made a profit from the use of the billiard tables. For the 'hire' of them they were paid a shilling a game. The persons who resorted there played for the hire. In substance, they played for a shilling a game. The loser paid and the owner received the sum. By an understanding among the players, the money won was to be applied towards defraying the expenses of the tables, but still it was money won at play, and upon the chance of the play, and not on any collateral matter." In Mount v. State, 7 Ind. 654,,the accused was charged with the violation of an act which provided that "every person who shall, by playing or betting at or upon any game or wager whatever, either lose or win any article of value, shall be fined," etc. The information charged that Groff owned and kept a tenpin alley for hire; that Mount and Miller hired of him the use of the alley to play one game of tenpins, for which they agreed to pay him 10 cents; "and that, in pursuance of said hiring," Mount and Miller played a game, by which Mount won of Miller 5 cents, the half of the hire of the alley, by then and there unlawfully betting and wagering with him the 5 cents on the result of the game. In the opinion in the case, Davison, J., said: "It is insisted that the information does not show a case within the statute. To constitute unlawful gaming, there must be a game played, and upon its result some article of value must be lost and won. Here was such game, and the only point of inquiry is, Was any article of value won by the defendant? His liability to Groff was paid by Miller, because, in the event of being unsuccessful, he had stipulated to pay it. This payment, though made to Groff, was for the use of the de- | shall play and bet for money, or other thing fendant; and the transaction was, in effect, of value, at any table of whatever name, the same as if the amount lost and won kind, or description, for gaming; or shall had been paid to the defendant instead of bet at any game of ninepins, or any other Groff, and he had received it from the de- number of pins, or at any billiard or pool fendant." In Hamilton v. State, 75 Ind. table-he shall be guilty of a misdemeanor." 586, it was held that suffering parties to The question, therefore, is, Did the eviplay upon a billiard table, where nothing dence in the case under consideration show is risked but the hire of the table, came that the accused bet at a pool table; that is, within the purview of a statute providing that he laid a wager or staked money or that any person who should keep or suffer anything of value at such table? We are of his building, etc., to be used for gaming, opinion that he did. He hazarded the payshould be fined, etc. In Alexander v. State, ment of 10 cents, for the other two players, 99 Ind. 450, it was held: "A charge in an to the keeper of the table, and took the indictment that the defendant played a chance of relieving himself of his own game of pool upon a pool table with another obligation to such keeper. It is uniformly person, and thereby won money from him, held that playing games to determine which is sustained by proof that the parties played of the players shall pay for drinks, food, or under an arrangement that the losing party cigars, etc., for the use of the players, is should pay the owner of the table the gaming. 14 Am. & Eng. Enc. Law, p. 670, amount charged for the use of it, and that and citations. The use of the table for the

the defendant won the games, and the other party paid for them." The court said: "To whom the money was directly paid was not so material as the fact that the game decided who should pay it, and who should profit by the payment. If appellant had lost the games, he would have lost the amount charged for them. He won the games, and thereby won the amount charged for them, or at least one half of that amount. At the end of each game he was 10 cents better off than if he had lost the game, and he was 5 cents better off than he would have been if, without any chance or hazard, each party had paid for his cue. That he did not actually handle the money, it seems to us, can make no difference." To the same effect, see Ward v. State, 17 Ohio St. 32; State v. Book, 41 Iowa, 550, 20 Am. Rep. 609; State v. Miller, 53 Iowa, 154, 4 N. W. 900; Tuttle v. State, 1 Tex. App. 364; State v. Howery, 41 Tex. 506; Hall v. State (Tex. Crim. App.) 34 S. W. 122; Mayo v. State (Tex. Crim. App.) 82 S. W. 515; Murphy v. Rogers, 151 Mass. 118, 24 N. E. 35. Cases in which rulings to the contrary have been made are People v. Sergeant, 8 Cow. 139; Harbaugh v. People, 40 Ill. 294; Blewett v. State, 34 Miss. 606; People ex rel. Healey v. Forbes, 52 Hun, 30, 4 N. Y. Supp. 757; State v. Hall, 32 N. J. L. 165; State v. Quaid, 43 La. Ann. 1076, 26 Am. St. Rep. 207, 10 So. 183. These rulings were put mainly on the ground that, to constitute gaming or betting, one or the other of the parties must expect to profit by the game, and that in playing billiards, pool, etc., the loser to pay the table hire, neither of the parties expected a profit. Section 401 of the Penal Code of 1895 declares: "If any person shall play and bet for money, or other thing of value, at any game played with cards, dice, or balls; or

OF and recreation, | CENTRAL

(...... Ga.........)

road commission of this state, that carriers, "in the conduct of their intrastate business, shall afford to all persons equal facilities in the transportation and delivery of freight," prohibits discrimination against shippers, not against commodities.

amusement purpose of when such use must be paid for, is as much a thing of value as the drinks, food, or cigars. The players enjoy the drinks, food, or cigars, and they enjoy the use of the table, cues, and balls. For each of these things money must be paid, and, without the arrangement among the players by *1. The rule promulgated by the railwhich the loser of the game must pay for what they all enjoy, each player would have to pay for his own share thereof, unless someone made him a gift of the same. If three men were to play a game of pool to decide which one of them should pay for the hire of a horse and vehicle for the temporary use of the three, would not each of them be engaged in betting with the other Would two upon the result of the game? not the loser lose, and the winners win, something of value? We think so. The hire of the horse and vehicle would be a thing of value wagered on the result of the game. And under the circumstances disclosed by the evidence in this case, so was the hire of the pool table for the use of the players while they played a game thereon. If two men were to each owe the keeper of a pool or billiard table $1, and were to play a game upon the table under an agreement that the loser should pay both debts, the effect would be the same as if each bet the other $1 on the result of the game. We can see no difference in principle between such a case and one in which the playing of the game creates the debt or debts to the keeper of the table, which the players agree the loser of the game must pay. The evident purpose of the statute was to prohibit all forms of gambling with cards, dice, or balls, or at any table, of whatever name, and the fact of the insignificance of the amount wagered is immaterial. As the accused introduced no evidence, and his statement was, in substance, the same as the testimony of the witness for the state, the verdict was demanded. The charge of the court excepted to-being, in effect, that, if the jury believed the facts of the case to be as stated by the witness for the state, they should find the accused guilty-was in accordance with the law of the case.

The fact that the state imposes a tax upon every keeper of a pool table does not affect the case. The licensing of a pool or billiard table does not authorize betting at such table. In State v. Doon, R. M. Charlt. (Ga.) 1, it was held that "the fact that a tax is imposed upon a faro table does not authorize the use of it for gaming." Judgment affirmed.

All the Justices concur.





a. As to issuing through bills of lading, or furnishing its cars to connecting carriers, in order that shipments may be carried to ultimate destination without reloading at terminal points, a carrier may discriminate against cotton seed, provided all shippers of that commodity are treated alike.

b. That such discrimination is dictated by the business interests of the carrier, and really affects but a single shipper, because he is the only person at a terminal point who is engaged in shipping, cotton seed out of the state, cannot alter the matter.

c. The carrier may at any time change its policy as to furnishing shippers of a certain commodity privileges which, under the law, it is not bound to extend to them.

d. That a case on trial has been before the supreme court, and that court has held that the plaintiff's petition sets forth a cause of action, is of no concern to the jury; nor should they be instructed as to the law upon abstract propositions wholly disconnected with the issues of fact they are called on to determine.

2. The operation of rule 36 of the railroad commission of Georgia is, by its own terms, limited to intrastate shipments; and unjust discrimination against shippers engaged in interstate commerce, as to the matter of issuing through bills of lading or furnishing reshipping facilities at terminal points within this state, does not constitute a violation of that ru.e.

(March 27, 1905.)


3. Where a plaintiff sues to
punitive damages for a particular wrong-
ful act, and relies, as evidencing the animus
with which that act was committed, upon the
commission of a wholly independent act, done
at a different time and place, the defendant
should be advised by the plaintiff's pleadings
of the case he is expected to meet.

*Headnotes by EVANS, J.

NOTE. As to right of carrier to fix lower rate for petroleum carried in tank cars than for petroleum in barrels, see State ex rel. Kohler v. Cincinnati, W. & B. R. Co. 7 L. R. A. 319.

As to right to fix lower rate for carrying coal to be used for manufacturing purposes than for coal to be sold by dealers, see Hoover v. Pennsylvania R. Co. 22 L. R. A. 263.

« AnteriorContinuar »