Johnson v. New York Daily News
| Decision Date | 19 May 1982 |
| Citation | 450 N.Y.S.2d 980,114 Misc.2d 1 |
| Parties | Adell JOHNSON and Dorothy Johnson, Individually and as Guardians and Natural Guardians of Shawn Nolley, an infant over the age of 14 years, Plaintiffs, v. NEW YORK DAILY NEWS, New York News, Inc., and D. L. Blair Corporation, Defendants. |
| Court | New York Supreme Court |
Rosen, Crane & Wolfson, Poughkeepsie, for plaintiffs.
Hall, Dickler, Lawler, Kent & Howley, New York City, for defendants.
In this action, plaintiffs seek summary judgment for the sum of $50,000 as winners of a Super Zingo Sweepstakes promotion offered by the defendants, New York Daily News and the D. L. Blair Corporation. Defendants cross-move for summary judgment dismissing the complaint.
Based upon the pleadings, oral argument, and recorded conferences in chambers, both sides, in recognition of the narrowness of the issues, have agreed upon the controlling facts. Accordingly, all parties contend, and the Court agrees, that the issue is entirely one of law, that no material factual dispute exists, and that one side or the other must be granted summary judgment.
The game closely resembles bingo, with the players submitting entry ballots. The correctly marked entries then go into a random drawing, for a top prize of $50,000 and other, lesser amounts. The advertising in the paper is large scale, with the $50,000 figure leaping from the page, in print 1 3/8"' high, bold enough to awaken even the most lethargic subway straphanger. The contract rules, in Lilliputian contrast, are in 1/16"' lettering, dwarfed even by the size of regular newsprint. 1
The plaintiff, Dorothy Johnson, filled out the entry form which appeared in copies of the New York Daily News of October 7, 1981. She placed the name Shawn Nolley on the entry blank with the address at which they both resided. Dorothy Johnson is the grandmother and guardian of Shawn, who was then 14 years old.
She circled certain numbers and mailed the entry, by certified mail, to the proper address. Defendants duly selected the entry at a drawing, for the $50,000 prize, and then telephoned the number listed on the entry form to tell the contestant the happy news that the entry was selected for the Super Zingo $50,000 sum.
Thereafter, the defendants informed the plaintiffs that there would be no payment because the entry form was declared to be in violation of rule # 6 which, among other things, restricts the contest to those over the age of eighteen (18).
Defendants contend that Shawn was under 18, that payment is denied because the contest was not open to him, and that Dorothy Johnson, by listing her grandson's name, submitted an entry which was in violation of the rules. (By stipulation, it was agreed that Dorothy Johnson was the author of the entry and that she sent it with Shawn's name printed thereon).
The plaintiffs argue that an adult contestant who submits the winning form should not be penalized for an act of filial generosity by Dorothy in listing her grandson as payee on her entry form. In support, plaintiffs point out that in games such as the Irish Sweepstakes, contestants commonly submit entries with all sorts of names, ranging from pseudonyms to quaint expressions, with no peril because the winner is readily identifiable, with no effort or concern on the part of the contest payor.
The defendants, however, place a good deal of emphasis on certain language in rule # 5, by which the defendant Blair is proclaimed to be the sole judge of winning entries and that its decisions are said to be "final."
The defendants have furnished the Court with four cases, all on this point (Wassyng v. Disabled American Veterans Service Foundation, 92 F.Supp. 275; Furgiele v. Disabled American Veterans Service Foundation, 116 F.Supp. 375, aff'd. 2 Cir., 207 F.2d 957; Baez v. Disabled American Veterans Service Foundation, 13 F.R.D. 330; and Gillmore v. Procter and Gamble Company, 6 Cir., 417 F.2d 615), which stand for the undeniable proposition that absent fraud, gross mistake, irregularity, or bad faith, the decision of the contest judges is final.
To begin with, a Court should not substitute its own view for that of the contest judge when it comes to such things as choosing winning jingles, wordsmanship, slogans, picture identification, matching clues, dot counting, or other examples typical of the genre (Jones v. Fowler, La.App., 185 So. 40, notwithstanding). In those realms, the decisions of the contest judges must be unassailable even if they were to select a vapid jingle entry in preference to one of Shakespearian proportions. The Court does not take defendants' cited cases to hold anything more than that. When we are dealing, however, with the legitimacy--as opposed to content--of an entry, we are not in the zone of contest judging, but of contract law. It is the same sort of legal decision which must be made by a court in determining whether a contestant is an excludable "family" member (e.g., Bryant v. Deseret News Pub. Co., 120 Utah 241, 233 P.2d 355).
The defendant Blair cannot, by providing that its decisions are final, deny entrants access to courts and thereby invest itself, as contest promoter, with conclusive authority to adjudicate what are, in effect, legal questions of offer and acceptance.
In Long v. Chronicle Pub. Co., 68 Cal.App. 171, 180-181, 228 P. 873, 876, it was held that:
Thus, in a prize-contest case, when the issue is one of compliance or non-compliance by the contestant, the courts have enforced and should enforce contractual awards in spite of contest rules which seek to reserve exclusive and "final" judgment to the promoter (Groves v. Carolene Products Co., 324 Ill.App. 102, 57 N.E.2d 507; Holt v. Wilson, Tex.Civ.App., 55 S.W.2d 580, 584).
When and if an entrant, acting in response to a public contest or prize offer, performs the required conditions of the offer in accordance with its published terms, it creates a valid contract under which the contestant is entitled to the promised reward (Holt v. Rural Weekly Co., 173 Minn. 337, 217 N.W. 345; Shapiro v. Prudential Theaters, 68 Misc.2d 798, 328 N.Y.S.2d 28, aff'd. 75 Misc.2d 752, 348 N.Y.S.2d 812; Hoff v. Daily Graphic, Incorporated, 132 Misc. 597, 230 N.Y.S. 360; see, generally, 9 N.Y.Jur. § 33, p. 561). 2
Defendants do not claim--and there is no basis to believe--that the plaintiff grandmother, when inserting Shawn's name, had any intent to deceive or confuse anyone. Indeed, even under the strictest reading of the rules there appears to be no limitation on the number of names or type of...
To continue reading
Request your trial
-
Johnson v. New York Daily News
...granted plaintiffs' motion for summary judgment in the amount of $50,000, plus interest and costs. Order and judgment reversed, 114 Misc.2d 1, 450 N.Y.S.2d 980, on the law, without costs or disbursements, plaintiffs' motion for summary judgment is denied and summary judgment dismissing the ......