The petition by the parents of a deceased child set out a cause of action for damages, and for injunction, for the unauthorized publication and circulation of the picture of said child. A petition will not be dismissed as a whole, if it sets out a cause of action for any of the relief prayed. It follows that the court erred in sustaining the general demurrer and dismissing the case. The court did not pass on the special demurrers, and no ruling is made thereon. *Page 258 In Pavesich v. New England Life Ins. Co., 122 Ga. 190 (50 S.E. 68, 69 L.R.A. 101, 106 Am. St. Rep. 104, 2 Ann. *Page 260 Cas. 561), this court ruled as follows: "The publication of a picture of a person, without his consent, as a part of an advertisement, for the purpose of exploiting the publisher's business, is a violation of the right of privacy of the person whose picture is reproduced, and entitles him to recover without proof of special damage." In that case the plaintiff sought damages for the unauthorized publication of his own picture. In this case the plaintiffs seek damages for the unauthorized publication of the picture of their deceased infant child. The distinction between the two cases is in the particulars pointed out, but in both cases the petitions alleged damages and injury to the plaintiffs. The petition in the present case, among other allegations, contains the following: "The photographing of and making the picture of said child and publishing same was much to the chagrin, mortification, humiliation, insult and injury of plaintiffs, and the acts and conducts of defendants are a serious injury to plaintiffs and an insult inflicted upon them, which money can not repair and which time can not eradicate, and same was done wantonly, maliciously, recklessly, negligently, and without regard of the rights of petitioners. Your petitioners show, that, in consequence of the conduct of defendants in the publication and circulation of said pictures, the making and selling and exposing of same, their good name has been attacked; that they have been greatly shocked, humiliated, and made sick, and have been obliged to employ a physician for their treatment and incurred a physician's and medical bill, the exact sum or sums they are unable to state at this time, but to the best of their knowledge and belief will be approximately two hundred fifty dollars." The suit is not based on injury to the deceased child. According to the allegations, the wrongs done by the defendants were committed after the death of the child. Therefore in this case there is no question of the survival of a right of action. The right, if it ever existed or now exists, began after the death of the child, and is a right of action on the part of the plaintiffs.
In Chapman v. Western Union Telegraph Co., 88 Ga. 763 (15 S.E. 901, 17 L.R.A. 430, 30 Am. St. Rep. 183), it was held: "A person to whom a telegraphic message was addressed and sent, informing him of the desperate illness of his brother and requesting him to come, is not entitled to recover of the telegraph company damages on account of mental pain and suffering, alleged to have *Page 261 resulted to the plaintiff from failure of the company to deliver him the message in due time, and from delaying delivery till too late to take the last train available for reaching the brother before his death occurred." But it was distinctly pointed out in the opinion that the petition alleged no damages to the plaintiff except for mental pain and suffering. Therefore that case differs from the present. That case was considered by this court in arriving at a decision in the Pavesich case, where this court said: "The effect of that decision is simply that in an action upon a contract, damages for mental pain and suffering can not be recovered, when no other damages have been sustained. Mr. Justice Lumpkin, in his opinion, distinctly recognizes that where there has been an invasion of a right from which the law would presume damages to flow, additional damages for pain and suffering might be recovered." Again, the court said: "It is well settled that if any contract, or property right, or trust relation has been violated, damages are recoverable. There are many cases which sustain such a doctrine." In Jacobus v. Congregation of theChildren of Israel, 107 Ga. 518 (33 S.E. 853, 73 Am. St. Rep. 141), plaintiffs brought suit for damages, alleging that defendants had wrongfully disinterred a dead body of a near relative, and that the same had been done wantonly and maliciously. This court held that in such a suit "exemplary damages may be awarded, in estimating which the injury to the natural feelings of the plaintiffs may be taken into consideration." That case also was considered by the court in deciding the Pavesich case, and in the opinion Mr. Justice Cobb said: "We call attention to the ruling . . that damages may be recovered by the relative of a deceased person who is the owner of an easement of burial in a cemetery lot, for the disinterment of the dead body; and that if the injury has been wanton and malicious, or the result of gross negligence and a reckless disregard of the rights of others, exemplary damages may be awarded, in estimating which the injury to the natural feelings of the plaintiff may be taken into consideration. If damages for wounded feelings can be recovered in such a case for the wanton removal of the bleaching bones of the deceased relative, it would seem for a stronger reason that such damages ought to be allowed to be recovered when those matters which the deceased had jealously guarded from the public during his lifetime, and his portrait, which *Page 262 was likewise protected from the public gaze, are made public property after his death." It is insisted, however, by defendants in this case that in the Pavesich case it was said: "In Murrayv. Lithographic Co., 28 N.Y.S. 271 [8 Misc. 36], a case decided by the court of common pleas of New York City and County, it was held that a person can not sue to enjoin the publication of a portrait of his infant child, or for damages caused thereby. This decision was undoubtedly correct; for if there was any right to sue for a violation of the right of privacy, the cause of action was in the child, and not in the parent." In other words, defendants insist that in the Pavesich case this court adopted the view of the New York court that a person can not sue to enjoin the publication of a portrait of his infant child or for damages caused thereby, because the right of action is in the child and not in the parent. This court could not have made a binding ruling to that effect, because no such question was involved in the Pavesich case. The remark of Mr. Justice Cobb in the opinion was entirely aside from the issue involved, and was clearly obiter dictum, because in the Pavesich case the plaintiff was not undertaking to recover for the unauthorized publication of a picture of some one else, but was seeking to recover for the unauthorized publication of his own picture. But there is a wide difference between the Murray case, decided by the New York court, and the present case. In the Murray case the parent sought to recover damages for the unauthorized publication of the portrait of his living infant child, and the court held that the right of action was in the living child. In this case the child was dead when the unauthorized acts were committed, and the right of action could not be in the child, but in the parents. Of course the decisions of courts of another State are not controlling upon this court, but are merely persuasive authority; and moreover the Murray case was not decided by the court of last resort of the State of New York. The petition in this case by the parents of a deceased child for general and special damages to the plaintiffs, and for injunction because of the alleged tortious act, set forth a cause of action. Compare Brents v. Morgan, 221 Ky. 765 (299 S.W. 967, 55 A.L.R. 964). A petition will not be dismissed as a whole, if it sets out a cause of action for any of the relief prayed. It follows that the court erred in sustaining the general demurrer and dismissing the case. The court expressly *Page 263 did not pass on the special demurrer, and therefore no ruling is made thereon. With reference to the liability of Savannah Hospital see Morton v. Savannah Hospital, 148 Ga. 438 (96 S.E. 887).
Judgment reversed. All the Justices concur except Beck, P.J.,and Hill, J., who dissent.
RUSSELL, C.J., and HINES, J., concur in the judgment, but are of the opinion that the petition would set out a cause of action if the child had not died.