PECK v. TRIBUNE CO., 154 F. 330

GROSSCUP, Circuit Judge, after stating the facts, delivered the opinion. The plaintiff in error indisputably has suffered a wrong, the gist of which is that by the publication of her picture in connection with a patent medicine advertisement, people who recognize the portrait will be led to think that she has loaned her face, and perhaps her name, in a way that a self respecting person would not have consented to.

Were the case under review an application for an injunction to restrain future publications, or were it an action at law against the parties consciously responsible for the make-up of the advertisement, a question wholly different from the one presented by this record would be involved.

The first question presented here is, whether the plaintiff in error made out a case of libel in her declaration and proof — the gravamen of the action, as set forth in the declaration, being, that whereas plaintiff in error was not a nurse, and did not either for herself, or as nurse, use Duffy’s Malt Whiskey as a tonic, the advertisement was calculated to convey the impression that she was a nurse, and that both for herself, and as nurse, she had used Duffy’s Malt Whiskey as a tonic.

This being the whole of the libel charged, and there being no averment of special damages, the question is: Is such a publication libelous per se? We think not. It is not, in our opinión, libelous, per se, to say of a person that she is a nurse, or that she has used as a tonic Duffy’s Pure Malt Whiskey, or has recommended its use. Nor do we think that these things said of a person, independently of other aver-ments or circumstances, make out a case to go to a jury for determination.

Doubtless there are people, by whom the use of whiskey as a tonic is considered wrong; and there may be people among whom to be a nurse, is considered something less desirable than not to be a nurse. But the world has not yet arrived at a consensus of opinion on these matters, that to say these things of a person is, independently of all other considerations, to libel him. This brings us to the other count — that the publication of the advem tisement is an invasion of plaintiff in error’s right of privacy.

The difficulty with this count, and with the proof in support of it is that defendant in error stood in relation to the advertisement as printer and distrib-uter only, acting without knowledge that the face printed and distributed was that of plaintiff in error, or was not that of the person whose face it purported to be; and as printer and distributer of matter offered as advertising matter, there cannot be indulged that presumption of malice that might possibly be indulged if the matter were printed as a part of the newspaper’s collection of news.

Now where there is no malice, and no technical trespass to realty or personalty, or other case involving the adjudication of title, or some other substantial right, which it was important to the plaintiff to establish, the maxim de minimis non curat lex is in some states applied, and recovery for nominal damages not allowed. But we need not put an affirmance of the judgment below upon this ground. There was no request made in the court below for the allowance of nominal damages.

There is no assignment of error that nominal damages were not allowed; so that there may be applied, we think, the doctrine prevailing in Indiana, New York, and other states (no Illinois case, or cases from the United States Supreme Court having been brought to our attention) that a judgment under such circumstances will not be reversed for failure alone to give nominal damages. Rhine, Adm’r, v. Morris, 96 Ind. 81; Platter v. The City of Seymour, 86 Ind. 323; Funk v. The Evening Post Publishing Co., 76 Hun (N. Y.) 497, 27 N. Y. Supp. 1089. /The judgment of the Circuit Court is affirmed.