Fairfield v. American Photocopy Equipment Co.

• Decision Date: 20 December 1955
• Citation: 291 P.2d 194,138 Cal.App.2d 82
• Court: California Court of Appeals Court of Appeals
• Parties: Joseph W. FAIRFIELD, Plaintiff and Appellant, v. AMERICAN PHOTOCOPY EQUIPMENT COMPANY, a corporation, Defendant and Respondent. Civ. 21131.

Page 194

291 P.2d 194

138 Cal.App.2d 82

Joseph W. FAIRFIELD, Plaintiff and Appellant, v. AMERICAN PHOTOCOPY EQUIPMENT COMPANY, a corporation, Defendant and Respondent.

Civ. 21131.

District Court of Appeal, Second District, Division 3, California.

Dec. 20, 1955.

Max Gewirtz and Ethelyn F. Black, Los Angeles, for appellant.

Alexander H. Schullman, David S. Smith, and Abe Mutchnik, Los Angeles, for respondent.

VALLEE, Justice.

Appeal by plaintiff from a judgment of nonsuit in an action for damages for the unauthorized use by defendant of plaintiff's name in advertising its product and for an injunction.

The following facts appear from admissions in the pleadings, the evidence, and reasonable inferences therefrom. Plaintiff is an attorney at law admitted to practice in New York and California. Defendant is an Illinois corporation doing business in California. Defendant is engaged in manufacturing and selling a photocopy machine known as 'Apeco Systematic Auto-Stat.' On July 1, 1954, defendant, without the permission of plaintiff and for the purpose of promoting sales of the machine and for gain and profit, circulated among the legal profession in the United States a printed advertisement indicating that plaintiff was a satisfied user of 'Apeco Systematic Auto-Stat.' The advertisement contained this statement: 'Here's just a partial list of the thousands of leading law firms using the' machine, followed by a list of lawyers and law firms in various cities in the United States, including the name of plaintiff and 'Los Angeles.' Plaintiff was the only Los Angeles lawyer listed. About 30,000 copies of the advertisement were circulated in the major cities throughout the United States.

Prior to the time defendant circulated the advertisement, plaintiff purchased one of the machines from defendant, returned it to defendant, and defendant refunded the purchase price.

The judgment of nonsuit was granted on the ground there was no proof of damage. The rules governing the granting of a motion for judgment of nonsuit are axiomatic, have been frequently stated, and need not be repeated. See Dunn v. Pacific Gas & Electric Co., 43 Cal.2d 265, 268, 272 P.2d 745; 42 West's Cal.Dig., Trial, k 159-165. It is error to grant a motion for a judgment of nonsuit if the plaintiff is entitled to any relief.

We accept the parties' appraisal of the nature of the action as one for damages for the invasion of plaintiff's right of privacy. The doctrine that there is a legally enforceable right of privacy has been definitely settled in California. Gill v. Curtis Publishing Co., 38 Cal.2d 273, 276, 239 P.2d 630; Coverstone v. Davies, 38 Cal.2d 315, 322, 239 P.2d 876; Gill v. Hearst Publishing Co., 40 Cal.2d 224, 227, 253 P.2d 441; Melvin v. Reid, 112 Cal.App. 285, 289-290, 297 P. 91; Metter v. Los Angeles Examiner, 35 Cal.App.2d 304, 308-310, 95 P.2d 491; Kerby v. Hal Roach Studios, 53 Cal.App.2d 207, 210, 127 P.2d 577; Stryker v. Republic Pictures Corp., 108 Cal.App.2d 191, 194, 238 P.2d 670. The right is distinct in and of itself and not merely incidental to some other recognized right for breach of which an action for damages will lie. Violation of the right is a tort. Melvin v. Reid, 112 Cal.App. 285, 290, 297 P. 91; 77 C.J.S., Right of Privacy, § 7, p. 414.

One concept of the right of privacy is the right of a person to be free from unauthorized and unwarranted publicity. Brents v. Morgan, 221 Ky. 765, 299 S.W. 967, 970, 55 A.L.R. 964, 965. The unauthorized use or publication of a person's name may constitute an actionable invasion of the right. Kerby v. Hal Roach Studios, 53 Cal.App.2d 207, 127 P.2d 577; Birming ham Broadcasting Co. v. Bell, 259 Ala. 656, 68 So.2d 314; Barber v. Time, Inc., 348 Mo. 1199, 159 S.W.2d 291, 295; Foster-Milburn Co. v. Chinn, 134 Ky. 424, 120 S.W. 364, 34 L.R.A.N.S., 1137, 135 Am.St. Rep. 417; Vanderbilt v. Mitchell, 72 N.J. Eq. 910, 67 A. 97, 14 L.R.A..,N.S., 304; Edison v. Edison Rolyform & Mfg. Co., 73 N.J.Eq. 136, 67 A. 392; Schwartz v. Edrington, 133 La. 235, 62 So. 660, 47 L.R.A., N.S., 921, Ann.Cas.1915B, 1180; Neyland v. Home Pattern Co., Inc., 2 Cir., 65 F.2d 363, certiorari denied 290 U.S. 661, 54 S.Ct. 76, 78 L.Ed. 572; Mau v. Rio Grande Oil, Inc., D.C., 28 F.Supp. 845; Routh v. Webster, 10 Beav. 561, 50 Eng.Reprint 698; annotations 138 A.L.R. 72, 168 A.L.R. 456. The exploitation of another's personality for commercial purposes constitutes one of the most flagrant and common means of invasion of privacy. 41 Am.Jur. 941, § 22.

The gist of the cause of action in a privacy case is not injury to the character or reputation, but a direct wrong of a personal character resulting in injury to the feelings without regard to any effect which the publication may have on the property, business, pecuniary interest, or the standing of the individual in the community. Reed v. Real Detective Pub. Co., 63 Ariz. 294, 162 P.2d s33, 138; Continental Optical Co. v. Reed, 119 Ind.App. 643, 86 N.E.2d 306, 88 N.E.2d 55, 14 A.L.R.2d 743, 747. The right of privacy concerns one's own peace of mind, while the right of freedom from defamation concerns primarily one's reputation. Reed v. Real Detective Pub. Co., 63 Ariz 294, 162 P.2d 133, 139; Pound in 28 Harv.L.Rev. 343, 362-363. The injury is mental and subjective. It impairs the mental peace and comfort of the person and may cause suffering much more acute than that caused by a bodily injury. Pound in 28 Harv.L.Rev. 343, 363. The disire of a business concern for publicity or advertising does not justify its invasion of the right of privacy. Kerby v. Hal Roach Studios, 53 Cal.App.2d 207, 127 P.2d 577. The motives of a person charged with invading the right are not material with respect to the determination whether there is a right of action, and malice is not an essential element of a violation of the right. Barber v. Time, Inc., 348 Mo. 1199, 159 S.W.2d 291, 294; Cason v. Baskin, 155 Fla. 198, 20 So.2d 243, 252, 168 A.L.R. 430, 443; Brents v. Morgan, 221 Ky. 765, 299 S.W. 967, 970, 55 A.L.R. 964; 77 C.J.S., Right of Privacy, § 2, p. 400; 4 Harv.L.Rev. 193, 218. Inadvertence or mistake is no defense where the publication does in fact refer to the plaintiff in such manner as to violate his right of privacy. Kerby v. Hal Roach Studios, 53 Cal.App.2d 207, 213, 127 P.2d 577.

The facts proven established an invasion of plaintiff's right of privacy. Defendant, without plaintiff's consent, advertised far and wide that plaintiff was a satisfied user of the machine. Plaintiff was not a satisfied user. The representation was false. The record warrants the inference that when defendant circulated the advertisement it knew plaintiff was not a satisfied user. The advertisement amounted to a pretended endorsement or recommendation of defendant's product. It was an unauthorized and unwarranted appropriation of plaintiff's personality as a lawyer for pecuniary gain and profit. The advertising use of plaintiff's name, without his consent, is comprehended within the narrowest definition of the right of privacy. It was clearly shown that a legal wrong had been done. It was error to grant the motion for judgment of nonsuit.

Defendant says that, at most, plaintiff was entitled to nominal damages only and that a judgment will not be reversed simply to permit a recovery of nominal damages, citing 14 Cal.Jur.2d 637, § 8. We cannot say as a matter of law that plaintiff is only entitled to nominal damages. Nominal damages are awarded to a plaintiff were the evidence shows a breach of duty owed to him or an invasion of his legal rights, without showing that he has thereby sustained a material injury. A judgment for nominal damages must always involve a trivial sum. Such damages are damages in name only and not in fact; they are the same as no damages at all. Price v. McComish, 22 Cal.App.2d 92, 100, 70 P.2d 978.

Civil Code, section 3281, reads:

'Every person who suffers detriment from the unlawful act or omission of another, may recover from the person in fault a compensation therefor in money, which is called damages.'

Section 3333 provides that the measure of damages for a tort 'is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.' Invasion of privacy for advertising purposes may afford the basis for an inference of improper motive. Barber v. Time, Inc., 348 Mo. 1199, 159 S.W.2d 291. The advertisement necessarily carried the implication that plaintiff endorsed the machine and had permitted defendant to use his name as a lawyer in its advertisements. He had done neither. Plaintiff is entitled to compensation for injury to his peace of mind and to his feelings. The recoverable compensation for these items is difficult to determine since they afford no definite criteria for the ascertainment of damages. In a case of this character there can be no direct evidence of the amount of damages sustained, nor the amount of money which will compensate for the injury. The measure of damages therefore is for the trier of fact, and in assessing such damages he is accorded a wide and elastic discretion. Taylor v. Pole, 16 Cal.2d 668, 673, 107 P.2d 614.

The Supreme Court of Oregon in Hinish v. Meier & Frank Co., 166 Or. 482, 113 P.2d 438, at page 448, 138 A.L.R. 1, stated:

'The damages [in an action for the invasion of the right of privacy] may be difficult of ascertainment, but not more so than in actions for malicious prosecutions, breach of promise of marriage, or alienation of affections, and in many cases of libel, slander and assault. The law has never demed recovery to one entitled to damages simply because of uncertainty as to the extent of his injury and the amount which would properly compensate him.'

See Eick v. Perk Dog Food Co., 347 I11. App. 293, 106 N.E.2d 742, 746.

The fact that damages resulting from an invasion of the right of privacy cannot be measured by a pecuniary standard is not a bar...