Birmingham Broadcasting Co. v. Bell

• Decision Date: 05 November 1953
• Docket Number: 6 Div. 429
• Citation: Birmingham Broadcasting Co. v. Bell, 259 Ala. 656, 68 So.2d 314 (Ala. 1953)
• Parties: BIRMINGHAM BROADCASTING CO. v. BELL.
• Court: Alabama Supreme Court

Page 314

68 So.2d 314

259 Ala. 656

BIRMINGHAM BROADCASTING CO. v. BELL.

6 Div. 429.

Supreme Court of Alabama.

Nov. 5, 1953.

Lange, Simpson, Robinson & Somerville, Birmingham, for appellant.

Hogan & Calloway, Birmingham, and Geo. Peach Taylor, Montgomery, for appellee. Count 1 of the complaint as amended is as follows:

'The Plaintiff claims of the Defendant Fifty Thousand Dollars ($50,000.00) damages due to the Plaintiff by the Defendant for the following reasons:

'The Plaintiff was during the year 1951 prior to August 29, of said year a sports announcer with an established professional reputation as a sports announcer under the professional name of 'Gabby' Bell and the Plaintiff avers that he had been announcing sports events including football games for towit, Five (5) years, prior to August 29, 1951 under his said professional name of 'Gabby' Bell and the Plaintiff further avers that his said broadcasts of the said athletic events were carried by many radio stations throughout the State of Alabama. The Plaintiff further avers that while he was enjoying his said professional reputation under his professional name of 'Gabby' Bell during the year 1951 the Defendant during towit, the Summer of 1951 secured a commercial sponsor for the Defendant's 1951 University of Alabama football game network using the said professional name and reputation of the Plaintiff and the Plaintiff further avers that the Defendant on, towit, March 1, 1951, and on towit, April 10, 1951, and on towit, July 23, 1951 sent letters to most of the radio stations throughout Alabama soliciting business for the Defendant's University of Alabama 1951 football game network using the Plaintiff's said professional name and reputation by stating in substance that 'Gabby' Bell would announce the said games for the Defendant. The Plaintiff further avers that on towit, August 9, 1951 the Defendant further used the Plaintiff's said professional name and reputation by causing to be published in the Birmingham News a statement in substance that the Plaintiff would announce the Defendant's said 1951 football games and the Defendant further caused to be published in the said newspaper on the said date in connection with the said statement a picture of the Plaintiff and the Plaintiff avers that the said newspaper statement and the said picture were caused by the Defendant to be published for the purpose of increasing the Defendant's said football network listening audience which the Plaintiff avers is of value to the Defendant.

'The Plaintiff further avers that all of the Defendant's aforesaid uses of the Plaintiff's name were of monetary value and other property value to the Defendant. The Plaintiff further avers that the Defendant did not hire the Plaintiff for the Defendant's said 1951 football games and further that the Plaintiff has not been compensated in any way by the Defendant for the aforesaid uses by the Defendant of the Plaintiff's professional name and reputation and the plaintiff further avers that the aforesaid uses of the plaintiff's professional name and reputation by the Defendant were without the permission of the plaintiff. The Plaintiff further avers that the Defendant has been unjustly enriched by reason of the Defendant's aforesaid uses of the Plaintiff's established professional name and professional reputation without the permission of the Plaintiff and without compensation to the Plaintiff for all of which he claims damages.'

Amended Counts 4 and 5 are as follows:

'IV. The Plaintiff claims of the Defendant Fifty Thousand Dollars ($50,000.00) as damages for that during, towit, February, 1951, towit, April, 1951, to wit, August, 1951 and divers other occasions in 1951 prior to the 1951 University of Alabama football season the defendant fraudulently deceived the plaintiff by falsely stating in substance to him and to third parties that the Plaintiff would be hired to broadcast all of the 1951 schedule of University of Alabama football games for the Defendant and its network. The plaintiff further avers that he relied upon the said fraudulent misrepresentations of the Defendant which were false and that the Plaintiff was fraudulently induced by said misrepresentations to withhold applications for available jobs announcing 1951 college football games and that he was further fraudulently induced not to accept available jobs elsewhere. Plaintiff further avers that through no fault of his the Defendant did not hire the Plaintiff to broadcast the Defendant's said 1951 University of Alabama football games and that as a consequence of the Defendant's said fraudulent misrepresentations that were false and the Plaintiff's said reliance and said acting thereon the Plaintiff was injured in this:

'The Plaintiff was caused to suffer great humiliation and professional embarrassment: the Plaintiff was caused to lose profitable employment; the Plaintiff was caused to suffer damage to his professional reputation,; the Plaintiff was caused to lose a large portion of his high public esteem; the Plaintiff was caused to suffer great mental anguish for all of which he claims damages as aforesaid. The Plaintiff claims punitive damages.

'V. The Plaintiff claims of the Defendant Fifty Thousand Dollars ($50,000.00) as damages for that during towit, February, 1951, towit, April, 1951, towit, August, 1951 and divers other occasions during 1951 prior to the 1951 University of Alabama football season the Defendant with the intent to deceive fraudulently deceived the plaintiff by fraudulently and falsely stating to him and to third parties that the Plaintiff would be hired to broadcast all of the 1951 schedule of University of Alabama football games for the Defendant and its network. The Plaintiff further avers that he relied upon said false and fraudulent misrepresentations of the Defendant and that the Plaintiff was fraudulently induced and deceived thereby to forego other employment for announcing the 1951 college football games and the Plaintiff was further induced thereby to withhold applications for available employment and the Plaintiff avers that through no fault of his own the Defendant did not hire the Plaintiff to broadcast the 1951 schedule of University of Alabama football games and the Plaintiff avers that as a proximate consequence of the Defendant's aforesaid fraudulent and false misrepresentations which were known by the Defendant to be false and which were made with the intent to deceive the Plaintiff and the Plaintiff's said reliance and said acting thereon the Plaintiff was injured in this:

'He was caused to suffer great humiliation and professional embarrassment; he was caused to lose profitable employment; he was caused to suffer great damage to his professional reputation and to his public esteem; he was caused to suffer mental anguish all as a consequence of the Defendant's aforesaid actions for which he claims damages. The Plaintiff claims punitive damages.'

The demurrer contained these grounds among others.

'76. It is not averred that the defendant failed to hire the plaintiff as an announcer of said football games due to any fault of the defendant.'

'79. For aught that appears said representations made by the defendant were made in good faith and the defendant's non compliance therewith was due to the plaintiff's own acts and volition.'

'86. The averment that the defendant did not hire the plaintiff through no fault of the plaintiff is not the equivalent of an averment that the defendant wrongfully, or through its own fault, or wrong, failed to hire plaintiff.'

'89. The representation alleged to have been made to the plaintiff was by its nature a mere forecast of a future event and not the subject matter of a mis-representation of a fact.'

'97. The representation that the plaintiff 'would be hired' was not a false representation when made.

'98. The representation that the plaintiff 'would be hired' was at most a promise or prediction.

'99. It does not appear that at the time the defendant promised the plaintiff that it would hire the plaintiff that the defendant did not in good faith intend to hire the plaintiff.'

'105. For aught that appears the failure of defendant to make a contract with plaintiff to broadcast said games, was due to no fault or wrong of the defendant.'

PER CURIAM.

This case comes here by appeal from a judgment rendered on verdict at law in favor of appellee. It was submitted to the jury on counts 1, 4, 5, 7 and 8. To all of them demurrer was overruled and that is the matter first to be considered.

Counsel for both sides seem to agree that count 1 is in assumpsit and that the other counts, supra, are in tort.

As to count 1, it is observed that it is not one of the common counts. It is a claim that defendant has unlawfully enriched himself at the expense of plaintiff, for which plaintiff claims a promise to pay implied by law, and it is expressed in language which manifests such a claim. That sort of claim is usually presented by one of the common counts, to which appellee seems to assent.

The trial court overruled appellant's demurrer to count 1 of the complaint and refused a general charge in writing requested by appellant as to that count. The sufficiency of it to state a cause of action is therefore properly presented. In discussing its sufficiency counsel for appellee (plaintiff below) assumes that since the count shows that plaintiff was a 'public figure,' he could not invoke an invasion of the right of privacy as the basis of such an action in tort. Upon that assumption he argues that although count 1 cannot be sustained on the theory that the right of privacy is invaded, it was properly treated as one in general assumpsit (not the common counts) based on an assumed 'quasi contract,' implied by law on account of the 'unjust enrichment' of defendant at the expense of plaintiff. He assumes that such a quasi contract under Alabama decision is a 'nebulous sort of thing,'--each case to be based upon...