Appeal from the Circuit Court of Cook County; the Hon. ALBERT
E. HALLETT, Judge, presiding. Affirmed.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
This is a right of privacy action brought by the administrator of the estate of Sarah Finley, deceased, and nine children of the decedent, against the defendant owner and publisher of a magazine known as "Front Page Detective." Plaintiffs appeal from an order which allowed defendant's motion to strike the amended complaint and dismiss the action.
The two count amended complaint shows that Sarah Finley died on March 20, 1956. In the July 1956 issue of the magazine, defendant published a story of Sarah Finley's rape and murder, entitled "This Brick With My Regards." The photographic copy of the story incorporated in the amended complaint starts with a two page picture of the murder suspect autographing a common house brick. In bold letters across the picture appeared the words, "I Cracked Her On The Head A Few Times Then Lighted A Match To See How Bad She Was Hurt. WOW! She Must Have Had A Very Thin Skull."
The article proceeded in narrative form to describe the condition of "the body of the lady in the gay red slippers . . . found sprawled in the desolate wind-swept alley at dawn." Portrayed were the thoughts passing through the mind of the police sergeant summoned from headquarters, and it set forth the presumed dialogue between the policemen concerning the similarity between the present and several earlier slayings.
The article contained a picture of a detective at the side of the body beside a picture of the decedent taken during her lifetime. The story related the finding on decedent's body of a nickel and two pennies in coin and the name and serial number of a soldier at Fort Leonard Wood, Missouri. It told how the police called the soldier and described the reaction and words of the 23-year-old son of the victim when the dead woman was described to him. It stated his mother was Mrs. Sarah Finley, 62-year-old widow and mother of twelve grown children, who lived with an older son on South Union Avenue, a short walk from the death scene. The police conversation with the older son at South Union Avenue was related, wherein he gave the name of a sister, Rita, together with the personal habits of the decedent.
In Count I, it is alleged that the article "maliciously defamed and tended to blacken the memory of Sarah Finley, then deceased, . . .," and caused great mental suffering to plaintiffs. Count II alleges that the article "was published and circulated without the consent of the plaintiffs and against their desires, and constituted an invasion of the privacy of plaintiffs and resulted in great mental suffering to plaintiffs."
In substance, plaintiffs contend "private individuals have a cause of action for being brought back into the limelight by magazine publication of a tragedy no longer newsworthy," and the occurrence, more than three months previous to the publication, was no longer news. "The publication was a story designed to appeal to the idle and prurient," and "brought the plaintiffs out of the solitude which it was their right to enjoy. This invasion of their right to privacy is the basis of the suit. They had a right to let time heal their wound and not to have the wound reopened solely for the defendant's selfish motives." Cases cited to support plaintiffs' claim that they have a cause of action for invasion of privacy include Eick v. Perk Dog Food Co., 347 Ill. App. 293, 106 N.E.2d 742 (1952); Annerino v. Dell Pub. Co., 17 Ill. App.2d 205, 149 N.E.2d 761 (1958); Smith v. Doss (Ala), 37 So.2d 118 (1948); Wagner v. Fawcett Publications, 307 F.2d 409 (CA 7th, 1962); and Hazlitt v. Fawcett Publications, 116 F. Supp. 538 (1953).
In Illinois, recognition of a cause of action for violation of the right to privacy was established initially in Eick v. Perk Dog Food Co., 347 Ill. App. 293, 106 N.E.2d 742, where it was held that the plaintiff had a clear right to be protected against the use of her photographic likeness in order to further a commercial enterprise. The fact that her damages were exclusively the result of her mental anguish did not defeat her right. On page 299, it was said:
"Basically, recognition of the right to privacy means that the law will take cognizance of an injury, even though no right of property or contract may be involved and even though the damages resulting are exclusively those of mental anguish. A person may not make an unauthorized appropriation of the personality of another, especially of his name or likeness, without being liable to him for mental distress as well as the actual pecuniary damages which the appropriation causes. The right of privacy is, of course, limited in cases of express or implied consent and in areas of legitimate public interest."
In Annerino v. Dell Pub. Co., 17 Ill. App.2d 205, 149 N.E.2d 761, the widow of a detective, who had been killed by a gangster, sued to recover damages on account of the use of her photograph in a publication, which retold the story in an article entitled "If You Love Me, Slip Me A Gun." In holding the complaint stated a cause of action for an unwarranted invasion of plaintiff's right of privacy, the court said (p 210):
"Plaintiff here has made the publication an essential allegation of her complaint. . . . There is no difficulty in ascertaining that what plaintiff complains of is not news reporting, but the use of her photograph in connection with a `story' which makes a strong appeal to the idle and prurient. This is sufficient to raise a question of fact."
Defendant's theory is that the plaintiffs' rights of privacy were not invaded because the article neither identifies the plaintiffs nor substantially publicizes them; defendant was privileged to publish the article in question because it contained information of legitimate public interest and news; neither the literary style adopted by defendant nor the fact that defendant made money by selling its publication defeats that privilege. Defendant also asserts the amended complaint alleges no facts showing that the article is untrue; it contains no allegations that defendant's article is fictionalized; no plaintiff's full name appears in the article; it mentions neither the first name nor the last name of nine of the plaintiffs.
[1-4] Initially, we find that the administrator here has no cause of action for libel or right of privacy of the decedent as related to a publication which occurred after her death. As the alleged defamation occurred after her death (Count I), it cannot be considered as an action which survived her or as part of her estate, capable of being pursued in some fashion for either her heirs or legatees. Furthermore, "slander and libel" are statutory exceptions to the actions which survive the death of a deceased person. (Ill Rev Stats 1963, c 3, § 339.) Also, there can be no cause of action for right of privacy on behalf of decedent's estate (Count II). It is obvious that mental anguish of the decedent, an essential element here, cannot be proved for something that occurred after her death. There can be no cause of action for right of privacy on behalf of her estate. See Maritote v. Desilu Productions, Inc., 345 F.2d 418, (CA, 1965), where it is said (p 420):
"It is anomalous to speak of the privacy of a deceased person. The telecast did not mention any plaintiff here and hence the privacy of no plaintiff was invaded by defendants. . . . Comment, ficitionalization and even distortion of a dead man's career do not invade the privacy of his ...