Ettore v. Philco Television Broadcasting Corp., Civ. No. 12982.

• Decision Date: 23 November 1954
• Docket Number: Civ. No. 12982.
• Citation: 126 F. Supp. 143
• Parties: Albert ETTORE, Plaintiff, v. PHILCO TELEVISION BROADCASTING CORPORATION and Chesebrough Manufacturing Company, Consolidated, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

126 F. Supp. 143

Albert ETTORE, Plaintiff, v. PHILCO TELEVISION BROADCASTING CORPORATION and Chesebrough Manufacturing Company, Consolidated, Defendants.

Civ. No. 12982.

United States District Court E. D. Pennsylvania.

November 23, 1954.

Dilworth, Paxson, Kalish & Green, Harold E. Kohn, and Aaron M. Fine, Philadelphia, Pa., for plaintiff.

Swartz, Campbell & Henry, Herbert A. Barton, and Oscar Brown, Philadelphia, Pa., for defendants.

WATSON, Chief Judge.

The plaintiff, Albert Ettore, a former professional prizefighter, who, on September 22, 1936, fought Joe Louis in Philadelphia, Pennsylvania, instituted this action against Philco Television Broadcasting Corporation and Chesebrough Manufacturing Company, Consolidated, claiming damages for invasion of his property rights and rights of privacy in that the defendant, Philco Television Broadcasting Corporation, televised over its station WPTZ a motion picture of the plaintiff's fight with Joe Louis. The television of the motion picture film of the fight occurred on December 30, 1949, and on December 8, 1950, on a program entitled "Greatest Fights of the Century", sponsored by the defendant, Chesebrough Manufacturing Company, Consolidated.

An agreed statement of facts, which facts the plaintiff would adduce in his case in chief, with exhibits attached thereto, was filed by the parties.

The following was stipulated by the parties:

"1. Plaintiff, Albert Ettore, is a citizen of the Commonwealth of Pennsylvania residing in Philadelphia.

"2. Defendant, Philco Television Broadcasting Corporation, is a Delaware Corporation, and at the times in question, to wit, December 30, 1949, and December 8, 1950, and at the time of the institution of this suit, was doing business in Philadelphia, Pennsylvania, at the Architects Building, 17th and Sansom Streets, Philadelphia, where it owned and operated television station WPTZ, an independent station affiliated with the National Broadcasting Company, Inc.'s television network.

"3. Defendant, Chesebrough Manufacturing Company, Consolidated, is a New York Corporation authorized to do business in Pennsylvania, with offices at 1421 Chestnut Street, Philadelphia, Pennsylvania.

"4. Paragraph 4 of the complaint alleges that the amount in controversy exclusive of interest and costs exceeds $3000, which allegation defendants deny.

"5. Defendant, Chesebrough Manufacturing Company, Consolidated, is engaged in the manufacture and sale of a hair preparation and other petroleum base products, and for purposes of advertising its products causes to be secured and used all types of advertising media including television programs. This defendant sponsored and secured the production of a certain television program which was entitled `Greatest Fights of the Century'.

"6. This television program utilized motion pictures of outstanding boxing contests of the past thirty years, which were telecast by the National Broadcasting Company, Inc.'s network. Station WPTZ was an independent station affiliated with said network and the program of the defendant Philco could be viewed in Pennsylvania, New Jersey, Delaware and possibly in other states, under unusual atmospheric conditions.

"Insofar as the defendant, Chesebrough, was concerned, the program was also telecast in New York and elsewhere.

"7. On September 22, 1936, the plaintiff, Al Ettore, fought Joe Louis at Municipal Stadium in Philadelphia. At the time of the fight motion pictures of the said fight were taken with the knowledge and consent of the plaintiff, Ettore. The promoters of the fight were Herman Taylor of Philadelphia, on behalf of Al Ettore, plaintiff in this case, and Michael S. Jacobs, who controlled Joe Louis.

"8. Al Ettore, the plaintiff, was to receive in addition to other provided compensation a twenty per cent percentage of all proceeds derived from the sale of motion picture rights in connection with said boxing contest.

"9. The plaintiff, Al Ettore, received the sum of $500, being twenty per cent of the sum of $2,500 paid for the sale of motion picture right to said boxing contest.

"10. The said motion picture film was telecast as set forth above in the manner more fully described hereinafter on December 30, 1949, and December 8, 1950.

"11. The original fight lasted five rounds, and in the 5th round the plaintiff, Al Ettore, was knocked out by Joe Louis. When the film was telecast the third round was deleted, as were also deleted the slow-motion pictures of the knockdown of Al Ettore, plaintiff, in the first round, and also the slow-motion pictures of the knockdown of Al Ettore in the 4th round.

"12. The program `Greatest Fights of the Century' is a program of fourteen minutes twenty-five seconds duration, of which three minutes is allocated to commercials or advertising. In order to bring the program within the time schedule it is necessary to delete or omit certain portions of the motion picture film.

"13. At the same time that the motion picture film was telecast there was a commentary by Jim Stevenson, who at the end of the 2nd round, as shown on the film, said, `There's the end of Round 2. In the 3rd round Louis just paces himself. Not too much action. And here we are in Round 4.' This same commentary as to the 3rd round was given at both showings of the film, namely on December 8, 1950, and December 30, 1949. The script of the commentary on the telecast of December 30, 1949, is attached hereto and marked Exhibit B. The script of the commentary on the telecast of December 8, 1950, is attached hereto and marked Exhibit C.

"14. The plaintiff will offer testimony that the 3rd round was his outstanding round, and that he won the 3rd round. The plaintiff will offer further testimony that at the time of the telecast plaintiff told his friends to watch for the 3rd round, which was his outstanding round; that he felt embarrassed after the fight, because the 3rd round was not shown; that it is something he cannot forget about; that he feels like a heel, that he really feels bad; that he wanted them to see that he could fight; but on the television they saw nothing; he was really a bum on television. The next day he went to work at his father's saloon, and the people there derided him, stating, `What was the matter with the 3rd round? Did you lick that boy?' (Meaning Louis) `Is that why they didn't show that?' Which left the witness unable to say anything, and the plaintiff will further testify that he really fought pretty good, but after the television show he was shown as `a bum'; that his friends refused to believe what he had told them and regarded him as a liar and braggart; that as a result of this the plaintiff was humiliated, embarrassed, and pretty well `burned up'.

"Conceding that the plaintiff, if called, would testify to the above facts, it is contended by both defendants that they are inadmissible on the ground that they constitute self-serving declarations and constitute a violation of the hearsay rule, and that as to any statements by other witnesses not made in the presence of either of the defendants, they are inadmissible in that they violate the hearsay rule.

"15. The plaintiff further contends that the telecast gave a distorted and garbled version of the fight, as will be apparent to anyone viewing the two films which will be offered in evidence — that is, the original film of the fight and the film of the telecast.

"It is the position of the defendants that the omission of the 3rd round does not constitute a distorted version of the fight; that the film speaks for itself, and that the omission of the 3rd round does not give rise to any legal cause of action.

"16. The plaintiff will further offer testimony that he did not sell his television rights with regard to the fight or the film of the fight or authorize anyone else to sell them on his behalf, and that he did not consent to the telecasts of the motion pictures.

"The defendants will agree that the motion picture films were shown over television without the consent of the plaintiff, the defendants of course contending that no consent was required.

"17. It is agreed that the question of damages is not included in this stipulation and is reserved until after the ruling of the Court, and that the plaintiff is not limited by this stipulation in presenting its case at the trial by additional or further witnesses, in the event that it is ordered that the case proceed to trial; and it is also agreed that the same applies to the defendants."

After the parties filed the stipulation as to all relevant facts to be adduced upon the plaintiff's case, except those as to damages, the defendants moved to dismiss the plaintiff's action under Rule 41 (b) of the Federal Rules of Civil Procedure, 28 U.S.C. Although the procedure herein employed is somewhat unique, the parties to the action agreed that the Court could dispose of the motion without further proceedings in the case on the facts as stipulated. At the hearing on the motion to dismiss there was exhibited in the court room, in the presence of the Judge, the motion picture film of the Louis-Ettore fight as it was portrayed in motion picture theatres some time after the fight. There was also exhibited in the court room, in the presence of the Judge, the televised version of the motion pictures of the fight.

The theory of the defendants' motion to dismiss is that upon the facts and the law the plaintiff has shown no right to relief. An involuntary dismissal should not be ordered, if on the facts it appears that any relief could be granted. Consequently, the facts and all reasonable inferences therefrom must be viewed in the light most favorable to the plaintiff.

The plaintiff first alleges a violation of his right of privacy, both at common law, and under Section 51 of The New York Civil Rights Law, McK.Consol. Laws, c. 6, which provides:

"Any person whose name, portrait, or picture is used within this state for advertising purposes or for the purposes of trade

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