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October 3, 1956


Appeals, Nos. 91, 92 and 93, Oct. T., 1955, from order and judgment of the Court of Common Pleas No. 2 of Philadelphia County, March T., 1952, No. 1767, in case of Kenneth Hull et al. v. The Curtis Publishing Company. Order and judgment affirmed.


Morris J. Winokur, for appellants.

Wilbur H. Haines, Jr., with him Philip H. Strubing and Pepper, Bodine, Frick, Scheetz & Hamilton, for appellee.

Before Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ. (rhodes, P.j., absent).

Author: Woodside

[ 182 Pa. Super. Page 88]


This is an appeal from the order and judgment of the lower court granting the defendant's motion for judgment non obstante veredicto after the jury found for the plaintiffs in an action in trespass for invasion of the right of privacy. The lower court held that the action was barred by the statute of limitations.

The three plaintiffs are Philadelphia policemen who claim the defendant invaded their right of privacy by publishing a photograph of them in the issue of The Saturday Evening Post dated January 31, 1948.

The photograph about which plaintiffs complain had previously been published in a daily newspaper. The circumstances leading to its ultimate publication in the "Post" were as follows:

In November of 1945 a robbery suspect was caught by two of the plaintiff police officers after a chase and brought into the police station. There a newspaper photographer took a series of three pictures which were published the following day in the Philadelphia Inquirer. The first of these pictures shows the suspect standing between two of the plaintiffs who are holding him by the wrists. The third plaintiff is looking over the suspect's shoulder toward the camera. The second photograph shows the suspect lunging forward with his head toward the floor only about two feet from it. All three of the uniformed plaintiffs are grabbing at him. Two of the plaintiffs testified that the suspect did not want his picture taken, but that they thought when he lunged forward that he was trying to break

[ 182 Pa. Super. Page 89]

    away from them. The third picture shows a person in civilian clothes identified by the plaintiffs as a detective, firmly holding up the suspect's head by the chin while two of the plaintiffs hold his arms. The third plaintiff is standing back of the suspect looking on. The pictures were published with the caption: "James P. Sweeney, discharged vet suspected in holdup, fights police at 65th St. and Woodland Ave. Station after chase and arrest." An article describing the holdup and how two of the plaintiffs chased and captured the suspect accompanied the pictures in the newspaper.

The second of these pictures appeared in an article published by The Saturday Evening Post nearly three years later. The article was entitled "Crime Was My Business" and was an account of the experiences of a former California police chief. It did not explain or have anything to do with the photograph. The caption under the photograph was "One of the compensations in a policeman's life is the thrill he gets out of walking into a potentially dangerous situation and knowing that it is his presence there that brings order. 'If I had to do it all over again,' says Mr. Powers, 'I'd still be a cop.'"

The defendant purchased the picture from the Acme News Agency in New York. With it the agency sent an explanation of the circumstances surrounding the taking of the photograph and the names of the plaintiffs. The photograph was selected by members of the defendant's staff from 76 different pictures obtained from several news agencies. The particular photograph was chosen because defendant felt that it most effectively illustrated the article with which it was published.

None of the plaintiffs gave permission or consent to its publication. The defendant made no attempt to obtain permission from any of the plaintiffs although

[ 182 Pa. Super. Page 90]

    it could have easily located them had it made an effort to do so.

The plaintiffs testified that the picture published in the Post was called to their attention by people who remarked that it portrayed them as bullies beating a helpless prisoner. They testified that on the pavement in front of the home of one of them there appeared a drawing showing an officer beating a person with a club, and that for a matter of several months after the publication they all received anonymous phone calls and mail characterizing them as bullies.

The right of privacy has not been clearly defined.

It has been variously referred to as "the right to live one's life in seclusion, without being subjected to unwarranted and undesired publicity. In short, ... the right to be let alone." Kerby v. Hal Roach Studios, Inc., 53 Cal. App.2d 207, 127 P.2d 577, 579 (1942); and as "the right of a person to be free from unwarranted publicity or unwarranted approbation or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion of one's private activities in such manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities." Smith v. Doss, 251 Ala. 250, 37 So.2d 118, 120, 121 (1948).

The right of privacy does not ordinarily apply to "public figures", Sidis v. F-R Publishing Corporation, 113 F.2d 806 (1940); Garner v. Triangle Publications, Inc., 97 F.Supp. 546, 549 (1951). "Generally, the right does not exist with respect to the dissemination of news and news events ...

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