Ettore v. Philco Television Broadcasting Corporation

• Decision Date: 17 January 1956
• Docket Number: No. 11503.,11503.
• Citation: 229 F.2d 481
• Parties: Albert ETTORE, Appellant, v. PHILCO TELEVISION BROADCASTING CORPORATION, Clayton, Inc. & Chesebrough Manufacturing Company, Consolidated.
• Court: U.S. Court of Appeals — Third Circuit

229 F.2d 481 (1956)

Albert ETTORE, Appellant, v. PHILCO TELEVISION BROADCASTING CORPORATION, Clayton, Inc. & Chesebrough Manufacturing Company, Consolidated.

No. 11503.

United States Court of Appeals Third Circuit.

Argued April 5, 1955.

Decided January 17, 1956.

Rehearing Denied March 3, 1956.

Harold E. Kohn, Philadelphia, Pa. (Aaron M. Fine, Dilworth, Paxson, Kalish & Green, Philadelphia, Pa., on the brief), for appellant.

Herbert A. Barton, Oscar Brown, Philadelphia, Pa. (Swartz, Campbell & Henry, Philadelphia, Pa., Godfrey Julian Jaffe, New York City, on the brief), for appellees.

Paul D. O'Brien, New York City (O'Brien, Driscoll & Raftery, Fennelly, Eagan, Nagee & Lage, New York City, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa., on the brief), for amici curiae.

Before BIGGS, Chief Judge, HASTIE, Circuit Judge, and WILLSON, District Judge.

BIGGS, Chief Judge.

On this appeal we find ourselves within that forest ruefully referred to by Judge Goodrich in Leverton v. Curtis Pub. Co., 3 Cir., 1951, 192 F.2d 974, 975. The forest in this case, however, is only four states deep.

The plaintiff, Ettore, met Joe Louis in a boxing contest or fight in Philadelphia in 1936 and was knocked down in the first and fourth rounds and out in the fifth. Motion pictures were taken of the contest with Ettore's knowledge and consent; indeed, he contracted to be paid 20% of all proceeds derived from the sale of the motion picture rights of the contest and actually did receive $500 or one-fifth of $2,500 paid to the promoter for the sale of motion picture rights at or about the time of the contest. The record does not indicate that Ettore received any other or further payment.

Some thirteen years later, in December 1949 and 1950, National Broadcasting Company, not named as a defendant,¹ through its network twice telecast the motion pictures of Ettore's contest with Louis as a part of a television series called "Greatest Fights of the Century." "Greatest Fights of the Century" was a commercial program sponsored by Chesebrough Manufacturing Company, Consolidated, to advertise nationally its "Vaseline Cream Hair Tonic." WPTZ, an independent station owned and operated by the defendant Philco but affiliated with the NBC network, twice televised the Ettore films in the Philadelphia area, apparently at the same times as the NBC New York telecasts.² It was stipulated that the WPTZ programs "could be viewed in Pennsylvania, New Jersey, Delaware and possibly in other states, under unusual atmospheric conditions." The stipulation reads: "Insofar as the defendant, Chesebrough, was concerned, the program was also telecast in New York City and elsewhere." The stipulation further states that Ettore, if he testified, would give evidence that he had not sold his television rights in the contest, nor his television rights with regard to the films of the contest, and also that he had not consented to the telecasts. The defendants, however, take the position in the stipulation that no consent was required. Commercial television at the time of the contest was nonexistent.³

The third round contained in the motion picture films was cut from the telecasts, as were also the slow-motion pictures of Ettore's knockdowns in the first and fourth rounds. The stipulation states that Ettore, if called as a witness, would testify that the omitted third round was his best and that its omission caused his friends to deride him.⁴ The court below viewed the films as originally taken including the omitted portions, and then as they were telecast.

Jurisdiction in this suit is based on diversity of citizenship. Philco and Chesebrough moved to dismiss under Rule 41(b), Fed.Rules Civ.Proc. 28 U.S. C., asserting that on the facts and the law Ettore had shown no right to relief. The motion to dismiss was granted. See D.C.1954, 126 F.Supp. 143. The appeal at bar followed.

In a diversity case a United States district court must follow the conflict of laws rule of the state in which it sits. Klaxon Co. v. Stentor Electric Mfg. Co., 1941, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477; Hartmann v. Time, Inc., 3 Cir., 1947, 166 F.2d 127, 138, 1 A. L.R.2d 370, certiorari denied, 1948, 334 U.S. 838, 68 S.Ct. 1495, 92 L.Ed. 1763; and Leverton v. Curtis Pub. Co., supra. The Pennsylvania rule is in accord with the Restatement, Conflict of Laws, Section 378, and is that the law of the place of wrong determines whether a person has sustained a legal injury. The Pennsylvania law creates the so-called "points of impact" referred to hereinafter. Cf. Foley v. Pittsburgh-Des Moines Co., 1949, 363 Pa. 1, 9, 68 A.2d 517, 521. The court below therefore had to determine what were the wrongs suffered by Ettore, if any, and the places where they occurred. Ettore claims that he has been damaged "in his property rights, right of privacy, good name and reputation. * * *" In this case, paradoxically, before it can be determined whether Ettore has suffered damage, it must first be decided in what states the damage, if any, occurred.

Ettore's alleged injuries must have been either to his person or to his property. Assuming damage to his person, to his right of privacy, sometimes called "the right to be let alone," illustration "(1)" to Section 377, Restatement, Conflict of Laws, is of aid to us. The illustration states that where "A, standing in State X, fires a gun and lodges a bullet in the body of B who is standing in State Y. The place of wrong is Y." Assuming damage to Ettore's property, illustration "(7)" to Section 377 is suggestive. It states: "A, broadcasting in State X, slanders B. B is well and favorably known in State Y and the broadcast is heard there by many persons conversant with B's good repute. The place of wrong is Y." The views expressed in these examples as to gun-fire and defamation by radio accurately portray the Pennsylvania law, the law of the forum. They furnish helpful analogies here.

The task of determining in what states, if any, Ettore was injured, brings us back to the stipulation. When an involuntary dismissal has taken place under Rule 41(b), F.R.C.P., all facts supplied by the stipulation or coming upon the record from any other source and all reasonable inferences therefrom must be viewed in the light most favorable to the plaintiff. But even in this favorable atmosphere, insofar as the telecasts by Philco are concerned, we must assume that Philco's telecasts could be heard and viewed only in Pennsylvania and in adjacent parts of New Jersey and Delaware.⁵ We may not assume that there were "unusual atmospheric conditions" which would carry them into other states. Even if we were to make such an assumption, this provision of the stipulation is too vague to be of service to Ettore, for the unusual atmospheric conditions which would permit the extension of a telecast are neither described nor specified. As to the telecasts by NBC in or near New York City, in the absence of some description which would enlarge their reach, we may not assume from the phrase "and elsewhere" that they penetrated any states outside of New York other than New Jersey.⁶

We find therefore in substance that the states in which Ettore asserts his rights were injured are Pennsylvania, Delaware, New Jersey, and New York. We must now look to Pennsylvania law with regard to the alleged injuries in Pennsylvania and, under the Pennsylvania conflict of laws rule, to the laws of Delaware and New Jersey as to the Pennsylvania telecasts and to the law of New York as to the New York telecasts, to determine what damage, if any, Ettore suffered in each of these jurisdictions. Moreover, since the NBC New York telecasts penetrated New Jersey, we must look also to the law of New Jersey through the double lens of the Pennsylvania and New York conflict of laws rules to determine Ettore's injuries in New Jersey insofar as the defendant Chesebrough is concerned. This last determination will have little effect save as to the measure of damages, as we shall see.

With these preliminaries out of the way, we now come to the question, what kind of injury or injuries has Ettore suffered? Since the famous Warren and Brandeis article, "The Right to Privacy," 4 Harv.L.Rev. 193 (1890), a great deal has been published concerning the kind of action, if any, an individual in the position of Ettore in the instant case or in that of Leverton in our Leverton decision may maintain against one who has infringed his personal or property rights. The state of the law is still that of a haystack in a hurricane but certain words and phrases stick out. We read of the right of privacy, of invasion of property rights, of breach of contract, of equitable servitude, of unfair competition; and there are even suggestions of unjust enrichment.⁷

For a long time judges were preoccupied with the question of whether there was any right of privacy or property of the kind asserted here which could be protected by the courts. However, as is pointed out by Prosser in his article, "Interstate Publication," 51 Mich.L.Rev. 959, 988-9 (1953), "By this time it has become quite clear that the answer is to be in the affirmative." In footnotes at the pages last cited, Prosser lists some twenty jurisdictions where the so-called right of privacy is accepted and an act such as that under consideration in the case at bar may be recognized as an independent tort. He points out that the right of privacy is less securely entrenched in nine other jurisdictions and that it is rejected in at least three, Rhode Island, Texas and Wisconsin. But if these decisions be read, we think the reader will conclude, as do we, that the word of power⁸ most frequently employed by the courts is either "privacy" or "property," the latter usage being not infrequently colored by the contract rights of a performer or of an entrepreneur.

There are, speaking very generally, two polar types of cases. One arises when some accidental occurrence rends the veil of obscurity...