Kimbrough v. Coca-Cola/USA

• Decision Date: 04 April 1975
• Docket Number: No. 4780,COCA-COLA,4780
• Citation: 521 S.W.2d 719
• Parties: John KIMBROUGH, Appellant, v./USA et al., Appellees.
• Court: Texas Court of Appeals

Page 719

521 S.W.2d 719

John KIMBROUGH, Appellant, v. COCA-COLA/USA et al., Appellees.

No. 4780.

Court of Civil Appeals of Texas Eastland.

April 4, 1975.

Rehearing Denied April 25, 1975.

Travis E. Vanderpool, Vial, Hamilton, Koch, Tubb, Knox & Stradley, Dallas, for appellant.

Robert A. Wooldridge, Dallas, Worsham, Forsythe & Sampels, Gary W. Maxfield, Elliott, Churchill, Hansen, Dyess & Maxfield, Dallas, P. M . Johnston, Estes, Sleeper, Williams, Johnston, Helm, Waco, for appellees.

RALEIGH BROWN, Justice.

This is a summary judgment case. John Kimbrough sued Coca-Cola/USA, Sports Communications, Inc., Bill Sansing, and Dave Campbell seeking damages for the unauthorized exploitation of his name, picture and reputation for commercial purposes. After a non-suit as to Dave Campbell was entered, the remaining defendants' joint motion for summary judgment was granted. Kimbrough appeals.

The record reflects that the defendants had developed a plan for a series of advertisements to be published in local sports publications. Under the plan the sports information director of the various Southwest Conference schools were contacted and requested to name a former football player from their school as its outstanding player. The selected player was then notified and told that defendants planned a series of paintings to honor the top players in Southwest Conference football history. The letter of notification stated each player was to receive an original painting with a reproduction going to his school and the new Texas Sports Hall of Fame. It also suggested a contemplated use of the paintings in a series of 'institutional advertisements.' John Kimbrough was selected to represent Texas A & M, was so notified and indicated acceptance.

Kimbrough in his deposition testifies the next thing he heard of the matter was a call from his daughter notifying him that his picture had been a part of the advertisement for Coca-Cola in the program at the SMU-Wake Forest football game. He testified he did not contemplate the use of his name and picture in an advertisement which had the commercial aspects of the one published and had not consented to such use.

Kimbrough pleaded multiple theories of recovery to-wit: violation of an absolute proprietary right, invasion of the right of rpivacy, fraud and misrepresentation, quantum merit, and unjust enrichment. Coca-Cola, Sports Communications, Inc., and Bill Sansing answered with general denials, and raised defensive issues of consent and negligence of Kimbrough.

Consideration shall first be given to defendants' argument that Kimbrough has not pleaded a cause of action. They contend the facts show he was a public figure and by his own admission the published material was not offensive or derogatory, therefore, the publication would not be actionable in Texas even if Kimbrough had not consented. Such argument presents the issue as to whether a public person in Texas has a right of privacy against the unauthorized use of his name or picture for commercial purposes.

Although no such cause of action existed under the common law some jurisdictions have acknowledged the existence of such an actionable right.

The Supreme Court of Alabama while considering a suit by a radio announcer against a broadcasting company for unjust enrichment by use of announcer's name without a contract in Birmingham Broadcasting Co. v. Bell, 259 Ala. 656, 68 So.2d 314 (1953), ruled:

'A public character does relinquish a part of his right of privacy . 41 Am.Jur. 938, notes 4 to 7. But such a waiver is limited to that which may be legitimately necessary and proper for public information. Pavesich v. New England Mutual Life Ins. Co., 122 Ga. 190, 50 S.E. 68, 69 L.R.A. 101; 138 A.L.R. 61.

The privacy of a public personage may not be lawfully invaded by the use of his name or picture for commercial purposes without his consent, not incidental to an occurrence of legitimate news value, 41 Am.Jur. 941--943, sections 22 and 23;'

The Supreme Court of New Jersey in Arnold Palmer, Gary Player, Doug Sanders, and Jack Nicklaus v. Schonhorn Enterprises, Inc., 96 N .J.Super. 72, 232 A.2d 458 (1967), in considering a cause in which well-known professional golfers sought an injunction and damages for the unauthorized use of their names by defendant in conjunction with the manufacturer and sale of a game, stated:

'There is little doubt that a person is entitled to relief when his name has been used without his consent, either to advertise the defendant's product or to enhance the sale of an article.'

The Court approved the following language from Gautier v. Pro-Football, Inc., 304 N.Y. 354, 107 N.E.2d 485 (Ct.App.1952):

'While one who is a public figure or is presently newsworthy may be the proper subject of news or informative presentation, the privilege does not extend to commercialization of his personality through a form of treatment distinct from the dissemination of news or information.'

The New Jersey Court further reasoned:

'It is unfair that one should be permitted to commercialize or exploit or capitalize upon another's name, reputation or accomplishments merely because the owner's accomplishments have been highly publicized.'

Defendants argue that Kimbrough being a 'public person' had no cause of action for violation of any proprietary right or right of privacy and cite in support of their position O'Brien v. Pabst Sales Company, 124 F.2d 167 (Fifth Cir., 1941). We distinguish O'Brien from the case at bar. In O'Brien the plaintiff a famous former football player, sued a beer company complaining that his name and picture had been used with a beer advertisement. He contended he did not and would not endorse beer; that he was damaged by the use of his picture so as to create the impression that he was endorsing beer.

The Court observed:

'The case was not for the value of plaintiff's name in advertising a product but for damages by way of injury to him in using his name in advertising beer.'

In the case at bar Kimbrough seeks damages for the unauthorized appropriation and use of his name and likeness in an advertising program.

We find no Texas case directly in point as to whether Kimbrough has pleaded a cause of action. However, our Supreme Court in Billings v. Atkinson, 489 S.W.2d 858 (Tex.1973), stated:

'The right of privacy is generally recognized and a preponderance of authority supports the conclusion that, independently of the common law rights of property, contract, reputation and physical integrity, the right exists and an invasion of the right gives rise to a cause of action. The numerous decisions supporting these propositions are cited in the following annotations: 138 A.L.R. 22, 168 A.L.R. 446, 14 A.L.R.2d 750 and 11 A.L.R.3d 1296.

Although the law of this State had not recognized a cause of action of a breach of the right of privacy, as such, the court in Milner v. Red River Pub. Co., (249 S.W.2d 227 (Tex.Civ.App.)) supra, did recognize that some of the right of privacy interests have been afforded protection under such traditional theories as libel and slander, wrongful search and seizure, eavesdropping and wiretapping, and other similar invasions into the private business and personal affairs of an individual.'

In Billings, supra, our Supreme Court in defining the right of privacy applied the same definition as applied by the New Jersey court in Palmer, supra, stating:

'The right of privacy has been defined as the right of an individual to be left alone, to live a life of seclusion, to be free from unwarranted publicity. 77 C.J.S. Right of Privacy § 1...