194 F.2d 6 (10th Cir. 1952), 4208, Donahue v. Warner Bros. Pictures

Docket Nº:4208.
Citation:194 F.2d 6
Party Name:DONAHUE et al. v. WARNER BROS. PICTURES, Inc., et al.
Case Date:January 04, 1952
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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194 F.2d 6 (10th Cir. 1952)

DONAHUE et al.

v.

WARNER BROS. PICTURES, Inc., et al.

No. 4208.

United States Court of Appeals, Tenth Circuit.

January 4, 1952

Rehearing Denied Feb. 16, 1952.

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[Copyrighted Material Omitted]

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Preston D. Richards, Salt Lake City, Utah (Rich & Elton, Salt Lake City, Utah, on the brief), for appellants.

Dennis McCarthy, Salt Lake City, Utah and Morris Ebenstein, New York City, for appellees Warner Bros. Pictures Distributing Corp. and Intermountain Theatres, Inc.

C. Vernon Langlois, Salt Lake City, Utah, was on the brief for appellees Arch E. Overman and C. E. Overman.

Before PHILLIPS, Chief Judge, and BRATTON, HUXMAN, MURRAH, and PICKETT, Circuit Judges.

BRATTON, Circuit Judge.

Section 103-4-8, Utah Code Annotated 1943, provides among other things that any one who uses for advertising purposes or for purposes of trade the name, portrait, or picture of a person, if such person is living, without first having obtained the written consent of such person, or, if such person is dead, without the written consent of his heirs or personal representatives, shall be guilty of a misdemeanor. And section 103-4-9 provides in presently material part that any living person, or the heirs or personal representatives of any deceased person, whose name, portrait, or picture is used within the state for advertising purposes or for purposes of trade, without written consent being first obtained as provided in the preceding section, may maintain an action against such person so using his name, portrait, or picture to prevent and restrain the use thereof; and may in the same action recover damages for any injuries sustained by reason of such use, and if the defendant shall have knowingly used such person's name, portrait, or picture in such manner as is declared to be unlawful, the jury or court, if tried without a jury, may in its discretion award exemplary damages.

Alice M. Donahue, Alma Donahue, Barbara Donahue, and Constance Donahue instituted in the state court of Utah this action against Warner Brothers Pictures, Inc., Warner Brothers Pictures Distributing Corporation, Intermountain Theatres, Inc., Arch E. Overman, and C. E. Overman. It was alleged in the complaint that the defendants Warner Brothers Pictures, Inc., and Warners Brothers Pictures Distributing Corporation were corporations organized under the laws of New York; that the defendant Intermountain Theatres, Inc., was a corporation organized under the laws of Delaware; and that the defendants Arch E. Overman and C. E. Overman were citizens of Utah. It was further alleged that plaintiff Alice M. Donahue was the widow of Jack Donahue, deceased; that the other plaintiffs were the adult daughters of Donahue; and that plaintiffs were the sole and only heirs of Donahue. It was further alleged that defendant Warner Brothers Pictures, Inc., was engaged in the business of making moving pictures; that defendant Warner Brothers Pictures Distributing Corporation, a wholly owned subsidiary of defendant Warner Brothers Pictures, Inc., was engaged in the business of distributing moving pictures made by defendant Warner Brothers Pictures, Inc.;

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that defendant Warner Brothers Pictures, Inc., made a moving picture entitled 'Look for the Silver Lining,' purposely depicting the career and using the name of Donahue as the leading male star therein; that the portrayal of Donahue in such picture was in part true to life but in many parts wholly untrue and without any factual basis whatever; that such picture was made without the consent or permission of Donahue, or of his legal representatives, or of plaintiffs; that the defendants had shown and exhibited the picture in theatres in Utah and throughout the United States; that such showings and exhibitions were for purposes of trade; that as the result, plaintiffs had been greatly vexed, annoyed, humiliated, and caused mental and physical suffering; and that defendants knowingly and wilfully refused to discontinue showing and exhibiting the picture, and unless restrained would continue to show and exhibit it. The prayer was for actual damages in the sum of $2000,000, exemplary damages in the sum of $150,000, and equitable relief in the form of an injunction to restrain the further showing or exhibition of the picture.

Defendants Warner Brothers Pictures Distributing Corporation and Intermountain Theatres, Inc., caused the action to be removed to the United States Court for Utah. The ground of removal was that the complaint set forth a separate and independent claim or cause of action as to each removing defendant which would be removable if sued upon alone; and that such separate and independent claim or cause of action was joined with a claim or cause of action against defendants Arch E. Overman and C. E. Overman which was not removable.

After the cause had been removed to the United States Court, plaintiffs filed an amended complaint. In addition to realleging substantially all of the allegations contained in the original complaint, it alleged that Donahue was a dancer, singer, comedian, and entertainer; that he appeared in vaudeville but not in moving pictures or night clubs; that in addition to his stage performances, he wrote several articles which were published in the Saturday Evening Post, and in collaboration with another person, he wrote a show. It further alleged that the portrayal of Donahue in the moving picture Look for the Silver Lining was in part true to life, but in most parts was wholly untrue and without any factual basis whatever; that such picture truly depicted the life of Donahue insofar as it represented that he was a dancer and danced with Marilyn Miller in the shows 'Sunny' and 'Rosalie'; and that in all other respects it was without any factual basis. And following that general allegation, it alleged certain particulars in which the moving picture was without any factual basis. In addition, it alleged in paragraph 9 thereof that plaintiff Alice M. Donahue, in collaboration with one Fay Pulsifer, wrote and prepared a manuscript portraying the true life of Donahue, but that by reason of the showing and exhibition of the picture Look for the Silver Lining, plaintiffs had been prevented from selling the manuscript. Again, the prayer was for actual damages in the sum of $2000,000, exemplary damages in the sum of $150,000, and an injunction to prevent defendants from further showing or exhibiting the picture.

Defendants Warner Brothers Pictures Distributing Corporation, Intermountain Theatres, Inc., Arch E. Overman, and C. E. Overman, filed two motions. One was to strike paragraph 9 of the amended complaint on the ground that the allegations contained therein were immaterial and irrelevant to any purported cause of action stated or to any relief requested in the amended complaint; and the other was for summary judgment on the ground that it appeared from the pleadings, depositions, admissions on file, together with the affidavits attached to the motion, that there existed no genuine issue as to any material fact and that each defendant was entitled to judgment as a matter of law. Paragraph nine of the amended complaint was stricken; summary judgment was entered dismissing the action with prejudice; and plaintiffs appealed.

The question of removability presents itself. It is provided by statute- 28 U.S.C. § 1441(c)- that where a separate and independent claim or cause of action,

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which would be removable if sued upon alone, is joined with one or more otherwise nonremovable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction. The claim or cause of action pleaded in the complaint in this case was one in tort. The tort as alleged was the wrongful showing of the moving picture with the name and portrayal of Donahue therein. That was the wrong charged for which relief was sought. According to the allegations in the complaint, all of the defendants acted together in exhibiting or showing the picture in theatres in Utah and elsewhere in the United States which constituted a wrongful invasion of the rights of plaintiffs. If as pleaded all the defendants joined in such wrong, there was no separate and independent claim or cause of action pleaded against the removing defendants. And the cause was not subject to removal on the ground set forth in the petition for removal. American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 19 A.L.R.2d 738; Willoughby v. Sinclair Oil & Gas Co., 10 Cir., 188 F.2d 902; Snow v. Powell, 10 Cir., 189 F.2d 172.

While the cause was not subject to removal on the ground of a separate and independent claim or cause of action against the removing defendants, complete diversity of citizenship existed between all plaintiffs on one hand and all defendants on the other; two of the defendants were citizens of Utah; and more than three thousand dollars, exclusive of interest and costs, was involved. Therefore the action was one falling within the original jurisdiction of the United States Court for Utah, and plaintiffs could have instituted it in that court in the first instance. After removal, plaintiffs did not challenge the removability of the cause either by motion to remand or otherwise. Instead, they filed an amended complaint in which both legal and equitable relief was affirmatively sought. Parties cannot by consent confer upon a court jurisdiction of the subject matter of an action which it would not have possessed without such consent. Neither can voluntary action of parties in the nature of waiver confer jurisdiction of an action if the court would not have had jurisdiction of the subject matter without the waiver. But where a suit of which the United States Court may entertain original jurisdiction is instituted in...

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