Flores v. Mosler Safe Co.

• Decision Date: 30 December 1959
• Parties: , 164 N.E.2d 853 Joseph C. FLORES, Respondent, v. MOSLER SAFE COMPANY, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 975

196 N.Y.S.2d 975

7 N.Y.2d 276, 164 N.E.2d 853

Joseph C. FLORES, Respondent, v. MOSLER SAFE COMPANY, Appellant.

Court of Appeals of New York.

Dec. 30, 1959.

Alexander Pfeiffer, New York City, for appellant.

John J. O'Malley, Saratoga Springs, for respondent.

CONWAY, Chief Judge.

This is an action for damages based upon the right of privacy created by section 51 of the Civil Rights Law, Consol.Laws, c. 6. This section provides, insofar as pertinent to this action, that: 'Any person whose name, portrait or picture is used * * * for advertising purposes or for the purposes of trade without the written consent * * * may maintain an equitable action * * * against * * * the * * * corporation so using his name * * * to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person's name * * * in such a manner as is forbidden * * * the jury, in its discretion, may award exemplary damages.'

The courts below have denied defendant's motion to dismiss the plaintiff's second cause of action for legal insufficiency. That cause of action alleges that defendant is engaged in the business of manufacturing and selling safes and vaults in New York and elsewhere; and that the defendant knowingly used plaintiff's name for advertising purposes without having obtained his prior consent in that the defendant printed, produced and widely distributed, by the mails and otherwise, throughout New York State a certain advertisement for its products in which his name was illegally used.

The advertisement consists of a reprint of a news photo and the accompanying captions and news account as they originally appeared in The New York Times and appended thereto, below the original photo, captions and news account, is defendant's advertising copy. The photograph is a rather spectacular and eye-catching picture of a burning building. The news report of the fire, which consists of a total of 47 lines spread over three columns below the picture and its caption, sets forth an account of two men. One of these men was plaintiff Flores, a business guest of the second man, who was a lessee of the property. Flores was returning consigned merchandise to the lessee at the time the fire broke out. The lessee dropped his keys and, there being no illumination, both men started lighting matches to aid them in the search for the keys. The account further sets forth that one of the matches ignited nylon netting and thus started the fire which spread rapidly through four floors of the building. Mr. Flores' name is mentioned three times, his address in up-State New York once and his occupation (motel keeper) once in the course of the 47-line news account of the fire and its origin. The appended advertising copy, which urges readers to protect their business records from destruction by fire by the use of one of defendant's safes, consists of 11 lines of different face type extending across the width of the three columns and occupies approximately one quarter of the face of the circular. Nowhere in the circular is there any indication that plaintiff in any way indorses defendant's products nor is it alleged that plaintiff is a person whose name would attract greater attention to the advertising copy.

There can be no doubt but that the circular, taken in its entirety, was distributed as a solicitation for patronage. The question before us, then, is whether the manner in which plaintiff's name was used therein comes within the prohibition of the statute as a use for advertising purposes. Defendant predicates its appeal on the theory that the use of plaintiff's name was merely an incidental mentioning of his name in a news report, that it was completely unrelated to the advertiser's products although in physical juxtaposition to the advertising matter, and that such a use of an individual's name does not constitute a violation of the statutory prohibition.

In this State, the right of privacy or the right of a person to live his life quietly and to be left alone rests solely in and is limited by statute (Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442, 59 L.R.A. 478; Civil Rights Law, §§ 50, 51). Equity and the common law protected only property rights. The only remedies for mental anguish caused by one individual to another were found in instances of libel, slander and malicious prosecution. Towards the end of the last century it was suggested in a scholarly article that the time had come for the common law to expand with the changes in our way of life and to meet new conditions by a recognition of a right of 'inviolate personality' and to protect the sentiments, thoughts and feelings of individuals (Warren and Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193 (1890)). The first real attempt to establish these principles in this State took place in Roberson v. Rochester Folding Box Co., supra. Recovery was denied (by a four to three division of this court) to a young woman whose photograph had been used in defendant's advertisements for its flour. The majority opinion stated that the reasons for denial of recovery were that the court could not find any precedent for such a recovery, that it felt that a judicial declaration authorizing such a recovery would open the floodgates to countless litigations, and that, since the existence of a right to privacy had not been asserted prior to 1890, it was within the sphere of the Legislature rather than of the court to recognize and establish such a right. At the very next session of the Legislature, and undoubtedly as a result of this decision, what are now sections 50 and 51 of the Civil Rights Law were enacted. The primary purpose of this legislation was to protect the sentiments, thoughts and feelings of an individual (Hofstadter, The Development of the Right of Privacy in New York (1954), p. 12). In construing the statutes it should be noted that although it is in part penal (§ 50 makes a prohibited use a misdemeanor; however, this section has not been invoked by the respondent and is not involved herein), the purpose of the statute is remedial and rooted in popular resentment at the refusal of the courts to grant recognition to the newly expounded right of an individual to be immune from commercial exploitation (Lahiri v. Daily Mirror, 162 Misc. 776, 779, 295 N.Y.S. 382, 385). Justice Shientag, in his opinion in the Lahiri case, in establishing a guide in the construction of these sections has said that 'A statute of this kind is not 'to be obeyed grudgingly, by construing it narrowly and treating it as though it did not exist for any purpose other than that embraced within the strict construction of its words.' It is 'not an alien intruder in the house of the common law, but a guest to be welcomed * * * as a new and powerful aid in the accomplishment of its appointed task for accommodating the law to social needs. '' Lahiri v. Daily Mirror, supra, 162 Misc. at page 779, 295 N.Y.S. at page 385.

In contending that its motion to dismiss the second cause of action should have been granted, defendant relies upon the cases of Gautier v. Pro-Football, 304 N.Y. 354, 107 N.E.2d 485; Wallach v. Bacharach, 192 Misc. 979, 80 N.Y.S.2d 37, affirmed 274 App.Div. 919, 84 N.Y.S.2d 894; Stillman v. Paramount Pictures Corp., 1 Misc.2d 108, 147 N.Y.S.2d 504, modified on other grounds 2 A.D.2d 18, 153 N.Y.S.2d 190, affirmed 5 N.Y.2d 994, 184 N.Y.S.2d 856, and Lahiri v. Daily Mirror, 162 Misc. 776, 295 N.Y.S. 382, supra. Although two of those cases involve lower court decisions which are not binding upon this court, each of these cases is distinguishable from the case at bar.

In the Gautier case, supra, plaintiff was a well-known trainer of animals who presented his act, pursuant to contract, as part of the half-time activities at a professional football game. This act was televised in violation of the contract and was shown in New York. A one minute paid spot commercial had immediately preceded the televising of the act. However, there were no commercials during or immediately after the presentation. We rejected the plaintiff's contention that this constituted a violation of his statutory right of privacy, holding that it was a mere coincidence that the commercial, which was one of many presented at appropriate intervals, occurred immediately prior to the presentation of his act and that he was not connected with the product by either visual or other reference. In addition, we placed great stress upon the fact that the plaintiff was a public figure who voluntarily became involved in a special and public event in which the public clearly had a legitimate interest and applied the well-established exception that a public personage or an active participant in a public event cannot invoke the protection afforded by these sections when his name, picture or portrait is used in connection with a truthful recounting or portraying of an actual current event as is commonly done in a single issue of a regular newspaper. See Binns v. Vitagraph Co., 210 N.Y. 51, 103 N.E. 1108, L.R.A.1915C, 839. In the case at hand, however, we are presented not with a simultaneous reporting by a public medium of communication of the actions of a person who has voluntarily entered the public eye, but rather with a deliberate later publication of a no longer current news item in an individual firm's advertising literature.

In the Wallach case, 192 Misc. 979, 80 N.Y.S.2d 37, supra, defendant's motion for summary judgment dismissing the complaint was granted when the affidavits showed that an entirely independent and unrelated news item relating to the plaintiff had been published on the same page as defendant's advertising and within space paid for by the defendant. It was apparently conceded that to attract the reader's attention to the to attract the readerhs attention to the portion of the newspaper...