{ "id": 2775801, "name": "La Verne BITSIE, by her father and next friend, Oscar Bitsie, Plaintiffs-Appellants, v. James B. WALSTON, the United Cerebral Palsy Association and Journal Publishing Company, Defendants-Appellees", "name_abbreviation": "Bitsie ex rel. Bitsie v. Walston", "decision_date": "1973-07-25", "docket_number": "No. 1108", "first_page": "655", "last_page": "664", "citations": [ { "type": "official", "cite": "85 N.M. 655" }, { "type": "parallel", "cite": "515 P.2d 659" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "85 N.M. 94", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2777372 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/85/0094-01" ] }, { "cite": "82 N.M. 717", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5333068 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0717-01" ] }, { "cite": "84 N.M. 326", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2763582 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/nm/84/0326-01" ] }, { "cite": "81 N.M. 608", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5360055 ], "weight": 3, "year": 1970, "opinion_index": 0, "case_paths": [ "/nm/81/0608-01" ] }, { "cite": "83 N.M. 380", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5342211 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/83/0380-01" ] }, { "cite": "80 N.M. 556", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5360215 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0556-01" ] }, { "cite": "154 A.2d 422", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1959, "opinion_index": 0 }, { "cite": "190 Pa.Super. 528", "category": "reporters:state", "reporter": "Pa. Super.", "case_ids": [ 745810 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/pa-super/190/0528-01" ] }, { "cite": "230 S.C. 330", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 2102254 ], "weight": 2, "year": 1956, "opinion_index": 0, "case_paths": [ "/sc/230/0330-01" ] }, { "cite": "57 S.E.2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "opinion_index": 0 }, { "cite": "80 Ga.App. 708", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 1545293 ], "year": 1950, "opinion_index": 0, "case_paths": [ "/ga-app/80/0708-01" ] }, { "cite": "168 A.L.R. 430", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1944, "opinion_index": 0 }, { "cite": "155 Fla. 198", "category": "reporters:state", "reporter": "Fla.", "case_ids": [ 1962267 ], "weight": 2, "year": 1944, "opinion_index": 0, "case_paths": [ "/fla/155/0198-01" ] }, { "cite": "239 P.2d 630", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1952, "opinion_index": 0 }, { "cite": "38 Cal.2d 273", "category": "reporters:state", "reporter": "Cal. 2d", "case_ids": [ 4404770 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/cal-2d/38/0273-01" ] }, { "cite": "63 Ariz. 294", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 2441976 ], "weight": 2, "year": 1945, "opinion_index": 0, "case_paths": [ "/ariz/63/0294-01" ] }, { "cite": "122 F.Supp. 327", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4244860 ], "opinion_index": 0, "case_paths": [ "/f-supp/122/0327-01" ] }, { "cite": "192 F.2d 974", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1214544 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/f2d/192/0974-01" ] }, { "cite": "22 L.Ed.2d 762", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1969, "opinion_index": 0 }, { "cite": "89 S.Ct. 1465", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1969, "opinion_index": 0 }, { "cite": "394 U.S. 987", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6305654, 6305429, 6305086, 6305922 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/us/394/0987-03", "/us/394/0987-02", "/us/394/0987-01", "/us/394/0987-04" ] }, { "cite": "405 F.2d 608", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1211857 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/f2d/405/0608-01" ] }, { "cite": "42 A.L.R.3d 859", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1970, "opinion_index": 0 }, { "cite": "81 N.M. 383", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5360804 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/nm/81/0383-01" ] }, { "cite": "69 N.M. 473", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2787294 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/69/0473-01" ] }, { "cite": "77 N.M. 384", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2809067 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0384-01" ] }, { "cite": "79 N.M. 160", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2739087 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0160-01" ] }, { "cite": "36 N.M. 202", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586543 ], "weight": 2, "year": 1932, "opinion_index": 1, "case_paths": [ "/nm/36/0202-01" ] }, { "cite": "355 U.S. 41", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6161830 ], "weight": 3, "year": 1957, "opinion_index": 1, "case_paths": [ "/us/355/0041-01" ] }, { "cite": "11 F.R.D. 545", "category": "reporters:specialty", "reporter": "F.R.D.", "case_ids": [ 3775323 ], "opinion_index": 1, "case_paths": [ "/frd/11/0545-01" ] }, { "cite": "105 F.Supp. 568", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 329719 ], "opinion_index": 1, "case_paths": [ "/f-supp/105/0568-01" ] }, { "cite": "83 N.M. 789", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5334147 ], "weight": 2, "year": 1972, "opinion_index": 1, "case_paths": [ "/nm/83/0789-01" ] }, { "cite": "81 N.M. 657", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5370290 ], "weight": 2, "year": 1970, "opinion_index": 1, "case_paths": [ "/nm/81/0657-01" ] }, { "cite": "267 N.E.2d 256", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 1 }, { "cite": "318 N.Y.S.2d 474", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1971, "opinion_index": 1 }, { "cite": "27 N.Y.2d 406", "category": "reporters:state", "reporter": "N.Y.2d", "case_ids": [ 2297274 ], "year": 1971, "opinion_index": 1, "case_paths": [ "/ny-2d/27/0406-01" ] }, { "cite": "80 N.M. 796", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5365239 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/80/0796-01" ] }, { "cite": "30 A.L.R.3d 203", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1970, "pin_cites": [ { "page": "246" } ], "opinion_index": 1 }, { "cite": "72 Colum.L.Rev. 693", "category": "journals:journal", "reporter": "Colum. L. Rev.", "year": 1972, "opinion_index": 1 }, { "cite": "342 F.2d 775", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 874863 ], "pin_cites": [ { "page": "776" } ], "opinion_index": 1, "case_paths": [ "/f2d/342/0775-01" ] }, { "cite": "247 Iowa 817", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 4450155 ], "weight": 2, "year": 1956, "opinion_index": 1, "case_paths": [ "/iowa/247/0817-01" ] }, { "cite": "164 A.2d 263", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1960, "opinion_index": 1 }, { "cite": "127 So.2d 715", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9883438 ], "opinion_index": 1, "case_paths": [ "/so2d/127/0715-01" ] }, { "cite": "81 N.M. 608", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5360055 ], "weight": 2, "year": 1970, "opinion_index": 1, "case_paths": [ "/nm/81/0608-01" ] }, { "cite": "154 A.2d 422", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1959, "opinion_index": 1 }, { "cite": "190 Pa.Super. 528", "category": "reporters:state", "reporter": "Pa. Super.", "case_ids": [ 745810 ], "year": 1959, "opinion_index": 1, "case_paths": [ "/pa-super/190/0528-01" ] }, { "cite": "239 P.2d 630", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1952, "opinion_index": 1 }, { "cite": "38 Cal.2d 273", "category": "reporters:state", "reporter": "Cal. 2d", "case_ids": [ 4404770 ], "year": 1952, "opinion_index": 1, "case_paths": [ "/cal-2d/38/0273-01" ] }, { "cite": "63 Ariz. 294", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 2441976 ], "weight": 2, "year": 1945, "opinion_index": 1, "case_paths": [ "/ariz/63/0294-01" ] }, { "cite": "192 F.2d 974", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1214544 ], "year": 1951, "opinion_index": 1, "case_paths": [ "/f2d/192/0974-01" ] }, { "cite": "22 L.Ed.2d 762", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1969, "opinion_index": 1 }, { "cite": "89 S.Ct. 1465", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1969, "opinion_index": 1 }, { "cite": "394 U.S. 987", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6305654, 6305429, 6305086, 6305922 ], "year": 1969, "opinion_index": 1, "case_paths": [ "/us/394/0987-03", "/us/394/0987-02", "/us/394/0987-01", "/us/394/0987-04" ] }, { "cite": "405 F.2d 608", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1211857 ], "year": 1968, "opinion_index": 1, "case_paths": [ "/f2d/405/0608-01" ] }, { "cite": "81 N.M. 383", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5360804 ], "weight": 2, "year": 1970, "opinion_index": 1, "case_paths": [ "/nm/81/0383-01" ] }, { "cite": "69 N.M. 473", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2787294 ], "weight": 2, "year": 1962, "opinion_index": 1, "case_paths": [ "/nm/69/0473-01" ] }, { "cite": "77 N.M. 384", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2809067 ], "weight": 3, "year": 1966, "opinion_index": 1, "case_paths": [ "/nm/77/0384-01" ] } ], "analysis": { "cardinality": 1249, "char_count": 29021, "ocr_confidence": 0.719, "pagerank": { "raw": 2.3520321929303798e-07, "percentile": 0.7933269468606085 }, "sha256": "e993e6892954e160ebdc0ee23c3fa01fdbb736b3ff5d1476c262c515da408193", "simhash": "1:9681b99056ffcd51", "word_count": 4816 }, "last_updated": "2023-07-14T15:38:26.265107+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY, J., concurs.", "SUTIN, J., dissents." ], "parties": [ "La Verne BITSIE, by her father and next friend, Oscar Bitsie, Plaintiffs-Appellants, v. James B. WALSTON, the United Cerebral Palsy Association and Journal Publishing Company, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nThe trial court directed a verdict for defendants on plaintiffs\u2019 claim for invasion of privacy. Prior to trial, summary judgment had been granted to defendants on plaintiffs\u2019 claim for libel. This appeal challenges the correctness of both rulings.\nAt the State Fair in 1970, Walston took a photograph of La Verne Bitsie, a Navajo child, then approximately 18 months old. The photograph was taken with the consent of her father, Oscar Bitsie. Walston prepared a sketch of La Verne and sent it to the father in February, 1971.\n\u201cThe Arts\u201d section of the Albuquerque Journal on Sunday, June 27, 1971, carried the headline: \u201cCards by Local Artists to Benefit Cerebral Palsy Fund.\u201d The article states: \u201cNote cards designed by five local artists are being sold by the Women\u2019s Committee of United Cerebral Palsy to help finance a pre-school for children afflicted with cerebral palsy.\u201d The remainder of the article identifies six designs, states the price of the cards and where the cards could be purchased. One of the identified designs is: \u201c * * * \u2018La Verne Bitsie, Navajo Girl\u2019 by Jim Walston, printed on tan paper. * * * \u201d\nSix photographs appear below the article. The photographs are of the designs identified in the article. One photograph is of the sketch of La Verne prepared by Walston.\nPlaintiffs\u2019 suit for invasion of privacy and libel is based on the newspaper article and photograph.\nInvasion of privacy.\nNew Mexico recognizes invasion of privacy as a tort for which damages may be recovered. Apodaca v. Miller, 79 N.M. 160, 441 P.2d 200 (1968); Blount v. T. D. Publishing Corporation, 77 N.M. 384, 423 P.2d 421 (1966); Hubbard v. Journal Publishing Company, 69 N.M. 473, 368 P.2d 147 (1962). The factual aspects of this tort have not as yet been delineated in New Mexico decisions. Compare Montgomery Ward v. Larragoite, 81 N.M. 383, 467 P.2d 399, 42 A.L.R.3d 859 (1970).\n\u201c * * * The plaintiff contends that the defendants appropriated her name and \u2022likeness without her consent and placed her in a false light in the public eye. * * * \u201d Prosser, Law of Torts (4th Ed. 1971), indicates both items alleged \u2014 the appropriation and the placing in a false light \u2014are two of the ways by which the tort may be committed. Prosser, supra, at 804 and 812. We proceed on the assumption that each of the claims allege the tort of invasion of privacy in New Mexico.\nThe three defendants present various contentions as to why they are not liable for an invasion of privacy in this case. We consider the contention common to each of the defendants. That contention is concerned with conduct for which liability is imposed and how chat conduct is measured.\nIV, Restatement of Torts \u00a7 867 (1939) states: \u201cA person who unreasonably and seriously interferes with another\u2019s interest in not having his affairs known to others or his likeness exhibited to the public is liable to the other.\u201d Comment (d) to \u00a7 867 discusses conditions of liability. It states: \u201c * * * liability exists only if the defendant\u2019s conduct was such that he should have realized that it would be offensive to persons of ordinary sensibilities. * * * \u201d\nComment (d), supra, goes on to say: \u201c * * * It is only where the intrusion has gone beyond the limits of decency that liability accrues. * * * \u201d It also states: \u201c* * * It is only when the defendant should know that the plaintiff would be justified in feeling seriously hurt by the conduct that a cause of action exists. * * * \u00bb\nIn some of the following cases, the courts have referred to \u201climits of decency.\u201d In others, the reference is to \u201cjustified in feeling seriously hurt.\u201d All, however, have applied the view that for liability, defendants\u2019 conduct must have been such \u201cthat he [they] should have realized that it would be offensive to persons of ordinary sensibilities.\u201d Varnish v. Best Medium Publishing Co., 405 F.2d 608 (2d Cir. 1968), cert. denied, 394 U.S. 987, 89 S.Ct. 1465, 22 L.Ed.2d 762 (1969); Leverton v. Curtis Pub. Co., 192 F.2d 974 (3rd Cir. 1951); Samuel v. Curtis Pub. Co., 122 F.Supp. 327 (N.D.Cal., S.D.1954); Reed v. Real Detective Pub. Co., 63 Ariz. 294, 162 P.2d 133 (1945); Gill v. Curtis Pub. Co., 38 Cal.2d 273, 239 P.2d 630 (1952); Cason v. Baskin, 155 Fla. 198, 20 So.2d 243, 168 A.L.R. 430 (1944); Davis v. General Finance & Thrift Corporation, 80 Ga.App. 708, 57 S.E.2d 225 (1950); Meetze v. Associated Press, 230 S.C. 330, 95 S.E.2d 606 (1956). The converse of this rule is stated in Blount v. T D Publishing Corporation, supra: \u201c * * * The right of privacy is to be applied to the individual of ordinary sensibilities, not the super-sensitive. * >J\u00ed \u00bb\nPlaintiffs recognize the above rule is applicable in this case; we agree. The trial court applied this standard when it directed the verdict at the close of plaintiffs\u2019 case. Ordinarily, the question of whether defendants violated this rule is a jury question. See Varnish v. Best Medium Publishing Co., supra; Aquino v. Bulletin Company, 190 Pa.Super. 528, 154 A.2d 422 (1959). The trial court, by directing a verdict, determined the evidence was insufficient to support a verdict in plaintiffs\u2019 favor. See Brown v. Hall, 80 N.M. 556, 458 P.2d 808 (Ct.App.1969). In reviewing the correctness of this ruling, we consider the evidence in the light most favorable to plaintiffs, who were resisting the motion for a directed verdict. Archuleta v. Johnston, 83 N.M. 380, 492 P.2d 997 (Ct.App. 1971).\nThe father testified the newspaper story was offensive because La Verne\u2019s picture had been used with an article referring to cerebral palsy and at a time when she was in good health. According to the father, this means La Verne will have bad luck later in life. La Verne\u2019s grandmother testified that a \u201cstrong assumption\u201d from the newspaper story is that La Verne had cerebral palsy. The grandmother also testified the use of La Verne\u2019s picture in relation \u2022 to the article \u201cwished her harm.\u201d Benjamin Begay testified that this wish will become a reality. All of the foregoing testimony is on the basis of \u201ctraditional\u201d Navajo belief.\nThe evidence then is that the newspaper story was offensive to traditional Navajos. There is evidence that there are some 20,000 traditional Navajos in New Mexico. The right of privacy \u201c * * * is a personal one, which does not extend to members of his family. * * * \u201d Prosser, supra, at 814. Assuming, but not deciding, that the offense to traditional Navajos, including La Verne\u2019s father and grandmother, is evidence of an offense to La Verne (2j4 to 3 years old at the time of the newspaper publication), the' evidence is insufficient for imposition of liability upon defendants. A traditional belief is one based on an inherited or established way of thinking; a cultural feature preserved from the past. Webster\u2019s Third New International Dictionary (1966). We cannot, as a matter of law, \u00e9quate an offense to persons holding such a belief with an offense to persons of ordinary sensibilities.\nThe interest which one has to maintain his privacy is the basis of the tort for invasion of privacy. Restatement of Torts, \u00a7 867, supra, Comment (a). \u201c* * * This interest appears only in a comparatively highly developed state of society. * * *\u201d Restatement of Torts, \u00a7 867, supra, Comment (b). The protection afforded to this interest \u201c * * * is relative to the customs of the time and place and to the habits and occupation of the plaintiff. One who is not a recluse must expect the ordinary incidents of community life of which he is a part. * * * \u201d Restatement of Torts, \u00a7 867, supra, Comment (c). We cannot equate an offense to persons holding a traditional belief with an offense to persons of ordinary sensibilities because: (1) the tort relates to the customs of New Mexico at this time and does not extend to \u201ctraditional\" beliefs. (2) At this time the newspaper story is no more than an ordinary incident of the life of the New Mexico community, which is the developed society on which the interest in privacy is based.\nOur ruling, of no invasion of privacy as a matter of law, applies because there is no evidence that, as a matter of fact, the newspaper story offended persons of ordinary sensibilities.\nAnother aspect of the tort here involved is whether the defendants should have realized that the newspaper story would be offensive. Unless there is evidence that the defendants should have so realized, there is no basis for liability. Restatement of Torts, \u00a7 867, supra, Comment (d). Neither in brief nor argument did plaintiffs contend there was any evidence as to this requirement concerning Walston and The United Cerebral Palsy Association. We have reviewed the record; there is no such evidence as to these two defendants.\nPlaintiffs assert there is evidence that the Journal should have known its story would have been offensive. This evidence is that the Journal, over a six or seven year period, had published \u201cdozens of articles\u201d on Navajo customs and beliefs. There is no evidence that the traditional belief asserted in this case was involved in the previously published articles. There is no evidence as to what customs and beliefs were covered in those articles. The evidence as to previously published articles does not sustain an inference that the Journal should have known the newspaper story in this case would be offensive.\nLibel.\nThe claim of libel in the complaint is that the article, together with the picture identifying La Verne by name, \u201c * * * inferred that plaintiff was afflicted with cerebral palsy, a serious disabling disease.\u201d Also, that \u201c * * * circulation of the publication implying that plaintiff was a victim of cerebral palsy, was false and defamatory. * * * \u201d\nA defamatory meaning will not be given to words unless such a meaning is their plain and obvious import. Language will receive an innocent interpretation where fairly susceptible to such an interpretation. Reed v. Melnick, 81 N.M. 608, 471 P.2d 178 (1970); Perea v. First State Bank, 84 N.M. 326, 503 P.2d 150 (Ct.App. 1972). The newspaper story in this case does not plainly and obviously impute that La Verne had cerebral palsy. The story is not a libel per se.\nWhere the defamatory character of the writing can only be shown by reference to extrinsic facts, the plaintiffs must plead and prove either: (1) the publisher knew or should have known of the extrinsic facts which were necessary to make the statement defamatory in its innuendo or (2) special damages. Reed v. Melnick, supra.\nIn this case, neither extrinsic facts nor special damages were pled. Summary judgment on the libel claim was correct. Wilson v. Albuquerque Board of Realtors, 82 N.M. 717, 487 P.2d 145 (Ct.App.1971); compare Salazar v. Bjork, 85 N.M. 94, 509 P.2d 569 (Ct.App.1973).\nThe summary judgment and the judgment of dismissal entered pursuant to the' directed verdict are affirmed.\nIt is so ordered.\nHENDLEY, J., concurs.\nSUTIN, J., dissents.", "type": "majority", "author": "WOOD, Chief Judge." }, { "text": "SUTIN, Judge\n(dissenting).\nI dissent.\nSometimes, in sensitive cases, trial judges grant directed verdicts and summary judgments as fact finders. Sometimes, appellate judges affirm. It is difficult to explain this problem to Indian people, and the public generally, because they are not familiar with the variant legal attitudes with which judges are endowed. An analytical study proves that legal attitudes are as variant as the changes in seasons.\nIn this case, the majority determined what \u201cordinary sensibilities\u201d are as a matter of law; that \u201cWe cannot, as a matter of law, equate an offense to persons holding [traditional Navajo beliefs] with an offense to persons of ordinary sensibilities\u201d; that the evidence does not sustain an \u201cinference\u201d; that the facts established, and inferences to be drawn therefrom, may be closeted.\nTrial judges and courts of review should not be frightened to allow a jury to play its role \u2014 to determine issues of fact. Article II, Section 12 of the New Mexico Constitution provides in part:\nThe right of trial by jury as it has heretofore existed shall be secured to all and remain inviolate.\nLet no inference be drawn that this dissent indicates a desire for victory for plaintiffs. Our primary duty is to determine whether the jury, rather than the trial court, should render a verdict.\nThe directed verdict on right to privacy was erroneous.\nThe facts most favorable to plaintiffs are:\nIn 1970, at the New Mexico State Fair, La Verne Bitsie, one and one-half years of age, was in the Indian Village on the fairgrounds. Walston, accompanied by his wife, told Oscar Bitsie, the father, his child was cute; that her name, La Verne, was the same as Mrs. Walston\u2019s first name, and asked for permission to take a photograph of the child,- which permission was given. Walston did not tell the father what use would be made of the picture.\nIn February, 1971, Walston prepared a sketch of La Verne and mailed it to her father. Oscar has a B.A. degree in history, is working on a master\u2019s degree in guidance and counseling, and for seven years, he has been employed by the Gallup-McKinley County School Systems as attendance counselor.\nOn June 27, 1971, in the Sunday edition of the Albuquerque Journal, the Walston sketch appeared in the Fine Arts section with an article entitled, \u201cCards by Local Artists to Benefit Cerebral Palsy Fund.\u201d The sketch was identified as \u201c \u2018La Verne Bitsie\u2019 by Jim Walston\u201d. The article reads in part:\nNote cards designed by five local artists are being sold by the Women\u2019s Committee of United Cerebral Palsy to help finance a preschool for children afflicted with cerebral palsy.\nDESIGNS included are . . . \u201cLa Verne Bitsie, Navajo Girl\u201d by Jim Walston, printed on tan paper; . . .\nTHE CARDS are available at the United Cerebral Palsy office at 4807 Menaul NE ....\nLater, the cards are to be offered at the United Cerebral Palsy booth at the State Fair. [Emphasis added]\n' This article was offensive to Oscar because it associated his child with cerebral palsy when he knew she was in full health. To him and to the Navajo Indians, the article meant that the child was going to have some kind of bad luck later on in life. La Verne did have two or three cases of pneumonia the winter of 1971.\nThere are more than 20,000 traditional Navajos in New Mexico. It is their belief that if a person\u2019s picture is used by the publisher in connection with a serious ailment, the person will actually suffer from the disease because the harm has been wished on the child.\nHowever, there was additional testimony. One witness testified that whenever you see a polio or retarded person fund campaign with pictures of children, you see a child who is crippled in that disease or shown with a handicap. Therefore, in this case, she said, you could naturally assume that La Verne Bitsie was helping cerebral palsy because she had it.\nThe Albuquerque Journal circulated, statewide, 100,000 copies of the Sunday edition. More than 1,500 were circulated in Gallup. It knew of the presence of Navajo Indians in Albuquerque and Gallup. If any members of the staff believed there was something that would offend the sensibilities of the readers, it would be brought to the attention of the editor or managing editor for decision. But it had no policy with reference to publication of matters of religious or cultural content. It ran a series of articles discussing various Indian pueblos up and down the Rio Grande Valley in which it described the clans within the pueblo, their religious beliefs and how it affected everyday life of these Indian people. During the previous six or seven years, it ran dozens of articles of a similar nature about the Navajo Indians, written by members of the staff who were specialists in Indian affairs. These were matters of great interest to the non-Indians as well as the Indians.\nThe Sunday Fine Arts section is used to increase circulation, and the charge for advertising is one of the factors based upon circulation.\nThe Journal did get written consent to publish pictures of children in a series of articles on retardation of children, children in the Carrie Tingley Hospital and the school at Los Lunas. It recognized that problems existed in connection with children with afflictions; that it was necessary to get expressed Or implied consent to use those pictures. No such consent was obtained in the instant case.\nWas there an issue of fact whether an invasion of privacy occurred through the unauthorized use of the La Verne sketch in the Albuquerque Journal? I believe there was.\nThe right to privacy is the right of an individual to be let alone and to live a life of privacy and seclusion free from unwarranted publicity. This doctrine, has its limitations because society has its rights. These limitations are (1) publication of public records. Hubbard v. Journal Publishing Company, 69 N.M. 473, 368 P.2d 147 (1962); (2) publication of matters of legitimate or public interest; or (3) where a person has sought and achieved prominence. Blount v. T D Publishing Corporation, 77 N.M. 384, 423 P.2d 421 (1966).\nThe right of privacy must be accommodated to freedom of speech and of the press and the right of the general public to the dissemination of information. The standard by which the right is measured is based upon a concept of the man of reasonable sensibility. Whether the publication by defendants is offensive to a reasonable person is a question for the jury to decide. Harms v. Miami Daily News, Inc., 127 So.2d 715 (Fla.App.1961); Reardon v. News-Journal Company, 3 Storey (Del.), 29, 164 A.2d 263 (1960); Bremmer v. Journal-Tribune Publishing Company, 247 Iowa 817, 76 N.W.2d 762 (1956); Aquino v. Bulletin Company, 190 Pa.Super. 528, 154 A.2d 422 (1959); Varnish v. Best Medium Publishing Company, 405 F.2d 608 (2nd Cir. 1968), cert denied 394 U.S. 987, 89 S.Ct. 1465, 22 L.Ed.2d 762 (1969); Leverton v. Curtis Pub. Co., 192 F.2d 974 (3rd Cir. 1951).\nBlount, supra, recognized the constitutional protection of freedom of the press, but it pointed out that under Art. II, \u00a7 17, N.M. Const., that freedom is limited because it specifically provides that every person is \u201cresponsible for the abuse of that right.\u201d\nIt is obvious that neither La Verne Bitsie nor her sketch fell within the limitations set forth above. La Verne did not participate in a public event which invited special attention. She was not an item of news. The public interest could not require the use of La Verne\u2019s sketch without consent. The article on cerebral palsy, to fulfill its purpose and satisfy the public interest in the fund drive would succeed without the sketch because there was no relationship between La Verne and the cerebral palsy fund drive. The Journal invaded the right of La Verne to stay out of public attention, the right to be let alone. It was not overbalanced by general public interest in being kept informed of a healthy young Indian girl being related to cerebral palsy. Gill v. Curtis Pub. Co., 38 Cal.2d 273, 239 P.2d 630 (1952).\nIn Gruschus v. Curtis Publishing Company, 342 F.2d 775, 776 (10th Cir. (N.M.) 1965), the court said:\nThe intangible but protected right of privacy recognizes, with some limitations, a right to seclusion, to freedom from public disclosure of personal matters of private life and other damaging and unnewsworthy. publicity of a personal nature, and to recover for the appropriation of name or picture;\nIn a dissenting opinion, it is of little value to discuss the history and development of the law on \u201cright to\u2019 privacy.\u201d Reference must be made to legal periodicals because of their influence on courts. Prosser, Law of Torts (4th Ed. 1971) at 802; IV, Restatement of Torts \u00a7 8,67; 37 A Words & Phrases, Right of Privacy, Supplement; Civil Rights Law \u2014 Invasion of Privacy \u2014 Use of Photograph, 35 Albany L.Rev. 790 (1971); Brunetti, Invasion of Property \u2014 Recovery for Non-consentual Use of Photographs in Motion Pictures Based on the Appropriation of Property, Vol. II, No. 3, Duquesne L.Rev. 358 (1973); Miller, Commercial Appropriation Of An Individual\u2019s Name, Photograph or Likeness: A New Remedy For Californians, 3 Pacific L.J. 651 (1972); Lusky, Invasion of Privacy: A Clarification of Concepts, 72 Colum.L.Rev. 693 (1972); 77 C.J. S. Right of Privacy \u00a7 4; 62 Am.Jur.2d Privacy, \u00a7 28; Annot. 30 A.L.R.3d 203, at 246 (1970).\nDuring the trial of the case, the court ruled: (1) That the law does not deprive a child of recovery for wrongs done merely because it is too young to appreciate the invasion of its privacy. (2) Whether the sensibilities of the ordinary person were offended, was a question for the jury not a matter of law for the court. ,(3) The jury was advised that it would be instructed as to the appropriate law to follow, \u201c * * * after we have heard all the evidence * * *\"\nShortly thereafter, plaintiff rested. Extensive arguments were made. The trial court \u201cwith some misgivings\u201d directed a verdict because (1) The damages suffered by plaintiff were speculative for the present and future. (2) The reluctance of Navajo witnesses to discuss the cultural or traditional aspect of Navajo life made it impossible for the general public or the newspaper to avoid encroachment upon these cultural traditions and customs. (3) The nature of the publication itself was such that without drawing inferences and innuendos there could be no proof \u201cor evidence of anything specifically that would be damaging except through the application of this event to the culture or the customs of the Navajos.\u201d\nThe majority opinion says: \u201cThe trial court applied this [right to privacy] standard when it directed the verdict at the close of plaintiffs' case.\u201d I find it difficult to read this conclusion from the language used by the trial court.\nDuring the trial, able defense counsel had argued that the \u201cright to privacy\u201d test was \u201can objective test, just like the reasonable man test, in all of your negligence cases\u201d; that the Journal and its editor acted in good faith, \u201cand it\u2019s not offensive to another person of ordinary sensibility. It\u2019s not offensive to the people sitting in this jury, which represents, the ordinary, reasonable, prudent person.\u201d\nTHE COURT: Would that not then create a jury question, for the jury to determine, as to whether or not it offended the sensibilities of the ordinary person, as opposed to the Court ruling as a matter of law as to that point ?\nGentlemen, aren\u2019t you asking the Court to take from the jury the determination of whether this would invade the sensibility of the ordinary person? Because, if in fact I follow your suggestion, in every case, every time any testimony was proffered, the objection would be made that this is not within the scope of the ordinary man test, and the Court would exclude it, and the jury would never \u2014 would never be called upon to pass upon what the ordinary citizen would or would not believe.\nI think what you are saying is not that we have injected a false issue, but we have injected only one issue, perhaps the merit of issues with regard to the ordinary sensibilities test. I\u2019m going to overrule the objection * * *.\nI agree with the trial court on the above issue. I disagree with the trial court on the issue of damages. Speculative damages was the basis of the directed verdict.\n\u201cIt is not necessary that special damages should have occurred from the violation of the right of privacy in order to entitle the aggrieved person to recover.\u201d 77 C.J.S. Right of Privacy \u00a7 7a; Reed v. Real Detective Pub. Co., 63 Ariz. 294, 162 P.2d 133 (1945). See, Montgomery Ward v. Larragoite, 81 N.M. 383, 467 P.2d 399 (1970); IV, Restatement of Torts, \u00a7 867(d) (1939).\nThe majority opinion further states:\nAll of the foregoing testimony is on the basis of \u201ctraditional\u201d Navajo belief.\nThe evidence then is that the newspaper story was offensive to traditional Navajos.\n******\nWe cannot, as a matter of law, equate an offense to persons holding [traditional Navajo beliefs] with an offense to persons of ordinary sensibilities.\nThere was testimony in addition to that which related to \u201ctraditional\u201d Navajo belief. It was sufficient to create an issue of fact on the issue of \u201cordinary sensibilities.\u201d Otherwise, we hold plaintiff must prove by witnesses who claim they have \u201cordinary sensibilities\u201d, that they were \u201coffended\u201d by the Journal article with La Verne\u2019s picture.\n\u201cOrdinary sensibilities\u201d like \u201cordinary care\u201d is a relative term; it depends upon the circumstances. Employers Casualty Company v. Moyston, 80 N.M. 796, 461 P.2d 929 (Ct.App.1969). The jury is composed of people who determine from the circumstances of this case whether the Journal article offended \u201cordinary sensibilities.\u201d \u201cWe cannot say as a matter of law that the [Journal] article would not be offensive to a person of ordinary sensibilities.\u201d Varnish v. Best Medium Publishing Co., supra.\nIt is erroneous to say that traditional Navajo Indians are not people with \u201cordinary sensibilities.\u201d The same could then be said of Irish-Americans, Mexican-Americans, Chinese-Americans, black people, Catholics, Protestants and Jews. On Irish-Americans, see Murray v. New York Mag. Co., 27 N.Y.2d 406, 318 N.Y.S.2d 474, 267 N.E.2d 256 (1971). Here, under the statutory New York rule, a picture illustrating an article on a matter of public interest is considered used for the purpose of trade or advertising where the picture has no real relationship to the article. It is obvious that the picture of La Verne Bitsie had no real relationship to the cerebral palsy fund drive.\nThe trial court erred in directing a verdict on the right to privacy.\nThe trial court erred in granting summary judgment on libel.\nUnfortunately, we never know the basis for summary judgment in the absence of findings or reasons therefor. Both parties \u201cmust know upon what grounds the judgment was granted in order to properly present the controversial issue to the appellate court.\u201d Wilson v. Albuquerque Board of Realtors, 81 N.M. 657, 472 P.2d 371 (1970). The summary judgment stated no reasons therefor nor made any findings.\nThe majority opinion relies on two allegations of plaintiffs\u2019 complaint and then concludes that the newspaper story does not impute that La Verne had cerebral palsy; that the story is not a libel per se; that extrinsic facts were not pled, therefore, no claim for relief existed for libel.\nIt is wrong for this court to rule as a matter of law that the newspaper story does not impute cerebral palsy to La Verne. To impute \u201csuggests ascribing something that brings discredit by way of accusation or blame.\u201d It is a question of fact. I am not convinced beyond a reasonable doubt that the matters relied on by defendants in support of their motion for summary judgment were sufficient to support their burden. Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972).\nIt is wrong for this court to dismiss plaintiffs\u2019 complaint for failure to state a claim for relief. This denies the plaintiffs the right to amend the complaint, if necessary, to state a claim for relief. The trial court did not dismiss plaintiffs\u2019 complaint for failure to state extrinsic facts. It granted summary judgment. Upon what basis, we do not know.\nOur procedural rule calls for a short and plain statement of the claim which gives the defendant fair notice thereof. Section 21-1-1 (8) (a) (2), N.M.S.A.1953 (Repl.Vol. 4); United States v. Stull, 105 F.Supp. 568 (D.C.1952); Turner v. United States Gypsum Co., 11 F.R.D. 545 (D.C.1951). It should not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).\nSection 21-1-1 (8) (a) (2), supra, should be read together with \u00a7 21-4-8, N.M.S.A. 1953 (Repl.Vol. 4) on libel and slander. This section provides it is not necessary to state in the complaint any extrinsic facts. It is sufficient to state generally that the defamatory matter was published concerning the plaintiffs. The only case which explained this section is Dillard v. Shattuck, 36 N.M. 202, 11 P.2d 543 (1932). This explanation is adverse, but it occurred prior to our procedural rule and is no longer effective on this point.\nReed v. Melnick, 81 N.M. 608, 471 P.2d 178 (1970) involved only dismissal of a libel complaint, not summary judgment. I find nothing in the record to support the summary judgment.", "type": "dissent", "author": "SUTIN, Judge" } ], "attorneys": [ "Lorenzo A. Chavez, Melvin L. Robins, Leof Strand, Albuquerque, for plaintiffs-appellants.", "William S. Dixon, Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, for defendant-appellee James B. Walston.", "Turner W. Branch, Branch, Dickson, Dubois & Wilson, Albuquerque, for defendant-appellee The United Cerebral Palsy Assn.", "J. J. Monroe, Johnson, Paulantis, Lanphere & Monroe, Albuquerque, for defendant-appellee Journal Publishing Co." ], "corrections": "", "head_matter": "515 P.2d 659\nLa Verne BITSIE, by her father and next friend, Oscar Bitsie, Plaintiffs-Appellants, v. James B. WALSTON, the United Cerebral Palsy Association and Journal Publishing Company, Defendants-Appellees.\nNo. 1108.\nCourt of Appeals of New Mexico.\nJuly 25, 1973.\nCertiorari Denied Sept. 7, 1973.\nLorenzo A. Chavez, Melvin L. Robins, Leof Strand, Albuquerque, for plaintiffs-appellants.\nWilliam S. Dixon, Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, for defendant-appellee James B. Walston.\nTurner W. Branch, Branch, Dickson, Dubois & Wilson, Albuquerque, for defendant-appellee The United Cerebral Palsy Assn.\nJ. J. Monroe, Johnson, Paulantis, Lanphere & Monroe, Albuquerque, for defendant-appellee Journal Publishing Co." }, "file_name": "0655-01", "first_page_order": 717, "last_page_order": 726 }