Hinish v. Meier & Frank Co.

• Decision Date: 20 May 1941
• Citation: 113 P.2d 438,166 Or. 482
• Parties: HINISH <I>v.</I> MEIER & FRANK CO., INC., ET AL.
• Court: Oregon Supreme Court

166 Or. 482

113 P.2d 438

HINISH

v. MEIER & FRANK CO., INC., ET AL.

Supreme Court of Oregon.

Argued January 29, 1941.

Reversed May 20, 1941.

Literary property — Private letters

1. The writer of a private letter is protected against its unjustifiable publication.

Torts — Personal pictures

2. A photographer employed to take a patron's picture cannot make additional copies and use them for his own purposes without authorization.

Trade-marks and trade-names and unfair competition — Personal name

3. Generally, a person has no such exclusive right to the use of his own name as to prevent the assumption of its use by another, but when one's own name is used in such a way as to amount to unfair competition, his name is said to be his own property.

Torts — Right of privacy

4. A legal right of privacy exists, for breach of which an action for damages will lie.

Damages — Mental anguish

5. The law does not redress for mental anguish alone.

Damages — Mental anguish

6. Where a wrongful act constitutes an infringement of a legal right, mental suffering may be recovered for, if it is the direct, proximate and natural result of the wrongful act.

Damages — Right of privacy

7. The violation of the right of privacy is an infringement of a legal right within rule that mental suffering may be recovered for, where wrongful act constitutes an infringement of a legal right, if such suffering is the direct, proximate and natural result of the wrongful act.

Damages — Uncertainty as to injury

8. A person entitled to damages will not be deprived of such damages simply because of uncertainty as to extent of his injury and amount which would properly compensate him.

Torts — Right of privacy

9. A complaint alleging that store maintaining optical department, and manager of such department, signed plaintiff's name to telegram urging governor to veto optical bill without plaintiff's knowledge or consent, and that plaintiff was a civil service employee

prohibited by law from engaging in political activities, and that plaintiff's position and right to recover pension were thereby jeopardized, and that plaintiff thereby suffered mental anguish, stated cause of action for breach of plaintiff's "right of privacy".

Damages — Unauthorized use of name

10. A store maintaining optical department, and manager thereof, had no legal right to appropriate to themselves for their own purposes without plaintiff's consent and against his will, his name and his personality and whatever influence he may have possessed, and inject them into a political controversy in which he had no interest by signing plaintiff's name to telegram urging governor to veto optical bill, and for such wrong the plaintiff could recover nominal damages, and additional damages for injury to his feelings, and punitive damages if there was actual malice.

Torts — Unauthorized use of name

11. A store maintaining optical department, and manager thereof, signing name of civil service employee to telegram urging governor to veto optical bill, without plaintiff's knowledge or consent, would not be liable to employee for damages on theory that employee's position and right to recover pension were thereby jeopardized, since, although it possibly would have been a violation of United States civil service rules for employee to have sent telegram himself, he did not in fact do so and it would not be assumed that he would be penalized for misconduct if he was not guilty.

Pleading — Complaint

12. On demurrer, allegations of complaint are assumed to be true.

                  See 21 R.C.L. 1197 (7 Perm. Supp., 5152); 26 R.C.L. 854
                (8 Perm Supp., 5811)
                  18 C.J.S., Copyright, § 11d
                

Before KELLY, Chief Justice, and BELT, BAILEY, LUSK, RAND and ROSSMAN, Associate Justices.

Appeal from Circuit Court, Multnomah County.

ALFRED P. DOBSON, Judge.

Action by George Hinish against Meier & Frank Company, Inc., and another, for damages for defendants' invasion of the plaintiff's right of privacy. From the judgment, the plaintiff appeals.

REVERSED.

W.K. Royal and R.F. Hollister, both of Portland, for appellant.

Borden Wood, of Portland (McCamant, Thompson, King & Wood, of Portland, on the brief), for respondents.

W.S. U'Ren and John F. Logan, both of Portland, amicus curiae.

LUSK, J.

This is an action to recover damages caused by the defendants' invasion of the plaintiff's right of privacy.

The circuit court sustained a demurrer to the complaint, and, the plaintiff refusing to amend, entered judgment for the defendants from which this appeal is taken.

The complaint alleges: The defendant, Meier & Frank Company, Inc., is an Oregon corporation engaged in the general mercantile business, as a part of which it maintains an optical department. The defendant, Kenneth C. Braymen, is the manager of the optical department.

On February 28, 1939, the defendants, without plaintiff's knowledge or consent, signed his name to the following telegram which they caused to be sent to the governor of the state of Oregon:

                  "GOVERNOR CHARLES A. SPRAGUE
                                                             — 1939 FEB 28 PM 9 36
                

"THERE IS NO DEMAND FOR OPTICAL BILL SEVENTY EXCEPT BY THOSE WHO ARE FINANCIALLY INTERESTED IN ITS PASSING IT IS NOT A BILL SET OUT BY THE PEOPLE I URGE YOU TO VETO IT —

                                                 "— GEORGE HINISH 2810 NE 49 AVE."
                

It is alleged that Bill Seventy referred to in this message was a bill passed by the Oregon legislative assembly, which, had it been approved by the governor and become a law, would have prevented the defendant Meier & Frank Company, Inc., from continuing to engage in the business of fitting and selling optical glasses to the public.

It is further alleged that the plaintiff is a Classified Civil Service Employe of the United States Government, that as such he is prohibited by statute and the rules duly promulgated by the United States Civil Service Commission from engaging in political activities, and that the defendants, by sending the said telegram, jeopardized plaintiff's position and his right to receive a pension upon reaching the age of retirement.

It is alleged that the plaintiff suffered mental anguish as the result of defendants' wrongful act, and damages are sought in the sum of $20,000, of which the sum of $10,000 is punitive damages.

The case presents to this court for the first time the question whether there is such a thing in this state as a legal right of privacy, for breach of which an action for damages will lie. This right, first brought forcefully to the attention of the profession in the year 1890 by an article in the Harvard Law Review by Louis D. Brandeis (later Mr. Justice Brandeis) and Samuel D. Warren ("The Right to Privacy", 4 Harv. L. Rev. 193), is said to be one that inheres in an "inviolate personality". In the language of Judge Cooley: "The right to one's person may be said to be a right of complete immunity: To be let alone." Cooley on Torts, 4th Ed. 34, § 18.

Where this right has been invaded, as for example, by using the name or photograph of a person without his authority, for advertising or commercial purposes, or by parading a person's intimate, private affairs before the public gaze, unjustifiably and against his will, some of the courts of this country have thought that no legal redress could be granted, largely because the right was unknown to the common law, and to recognize it would be judicial legislation. No one, however, has had the hardihood to excuse as ethically or morally defensible practices which, becoming increasingly common and in many instances more and more offensive and injurious, under modern social conditions and through the use of modern scientific inventions, give sharper point to the demand that in such cases courts discharge the function for which they exist, of administering justice and affording redress for wrongs committed.

The Court of Appeals of New York refused to recognize the existence of a legal right of privacy in the leading case of Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442, 59 L.R.A. 478, 89 Am. St. Rep. 828. The plaintiff was a young woman whose picture had been appropriated for advertising purposes by a milling company. Twenty-five thousand likenesses of the plaintiff, printed as a part of an advertisement of the defendants' product, had been "conspicuously posted and displayed in stores, warehouses, saloons, and other public places". The court divided four to three on the question whether the complaint for an injunction and damages stated a cause of action. The opinion of the majority, written by Chief Judge Parker, while based primarily on the inability of the court to find authority or precedent for granting the relief sought, since, as it was said, no property right was involved, does not, as it seems to us, properly evaluate the enormity of the wrong done to the plaintiff. "Such publicity", it was said, "which some find agreeable, is to plaintiff very distasteful, and thus, because of defendants' impertinence in using her picture, without her consent, for their own business purposes, she has been caused to suffer mental distress where others would have appreciated the compliment to their beauty implied in the selection of the picture for such purposes * * *"

But, to Judge Gray, who dissented with two of his associates, the proposition seemed "an inconceivable one that these defendants may, unauthorizedly, use the likeness of this young woman upon their advertisement as a method of attracting widespread public attention to their wares, and that she must submit to the mortifying notoriety, without right to invoke the exercise of the preventive power of a court of equity." And, referring to decisions protecting a writer's or lecturer's right to a literary property in a letter or a lecture against its unauthorized publication, he said that he thought the plaintiff had the same property in the right to be protected against the use of her portraiture for ...