Page:Harvard Law Review Volume 9.djvu/383

NOTES. 355 death, however much she might have done so had it been attempted during her life, and that consequently no evidence of her desire to avoid publicity could be relevant to the plaintiff's case. P'urther and in general the statue was not to be used in any way which could give a " sane and reasonable person " any complaint on his own account, though he were her nearest relative. Reduced to its formal parts the decision would therefore seem to be a denial only of equitable jurisdiction, and not of the plaintiff's legal right. It may be fairly said that the court admitted that a tort was proposed by the defendant, but found no sufficient reason for giving the extraordinary remedy of a court of equity, and left the plaintiff to his remedy at law. The case is quite new in its particular features, since the injunctions previously granted, e. g, against the reproduction of photographs, publication of letters, and the like, were all cases where the defendant proposed to give a publicity for his own profit, regardless of whether it was calculated to do honor to the plain- tiff or not. Moreover, this was a case where equitable jurisdiction cannot be said to flow necessarily from the facts, as in the case of a proposed tort to land, but is rather analogous to a bill for the recovery of a chattel in specie, depending upon its particular circumstances for equitable jurisdiction. In the exercise of its discretion in cases of this sort, a court has such latitude that it is impossible, or at least presumptuous, to say it has come to a wrong decision unless that be obviously absurd and unreasonable. So in this case the decision of the court must be held to be justified even by those who might disagree with the result, had it been their place to decide the case, for there is surely nothing preposterous or absurd in saying that here the plaintiff's loss could be sufficiently compensated by money damages. But the reasoning of the court, with all respect to the learned judge who delivered the opinion, is not altogether satisfactory. Since the question be- fore them was not to be governed by the decisions of the lower courts, and their position was not that of reviewing the decision of an independent tri- bunal, e.g. the verdict of a jury, there was no occasion to hold that no " sane and reasonable person " could uphold the decision of those lower courts, and it was a statement which their very unanimity in combination with the vigorous dissent in the Court of Appeals itself ought to have effectually disproved. Further, the line of reasoning by which the plaintiff's evidence of the deceased's dislike of publicity was excluded as irrelevant to his own proof of damages can be assented to with difficulty. It is surely a mistaken view of the ordinary facts of human feeling to say that a naturally retiring person can tolerate the anticipation of a publicity after his death from which he would shrink painfully during his life. Surely a person to whom privacy is of any value whatever must contemplate a future publicity with almost as much chagrin as a present one. Could the learned judge, for example, bear for an instant the thought of a public representation or description of his courtship after his death? Now if this is so, the knowledge of how great annoyance would have been caused to the deceased, had she had knowledge of the defendant's proposition, was a very material element in the plaintiffs damages, for surely it is a source of pain to every normal person to know that that is contemplated which would have caused suffering to any one dear to hinj, who is now dead. Indeed, it is unnecessary to give proofs of that feeling, they are so obvious. Finally, the case seems a good instance of the ill effects of the loose sys- ^EORGE R. WALKER COUNSELOR AT LAW 09 WALL STREET NEW YORK