Leavy v. Cooney

• Decision Date: 27 March 1963
• Citation: 214 Cal.App.2d 496,29 Cal.Rptr. 580
• Court: California Court of Appeals Court of Appeals
• Parties: J. Miller LEAVY, Plaintiff and Respondent, v. Terrence W. COONEY and Sterling World Distributing Corp., Inc., a corporation, Defendants and Appellants. Civ. 26128.

Page 580

29 Cal.Rptr. 580

214 Cal.App.2d 496

J. Miller LEAVY, Plaintiff and Respondent, v. Terrence W. COONEY and Sterling World Distributing Corp., Inc., a corporation, Defendants and Appellants.

Civ. 26128.

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

March 27, 1963.

Rehearing Denied April 17, 1963.

Hearing Denied May 22, 1963.

Cooney & Cooney, Los Angeles, for appellants.

Irwin O. Spiegel, Beverly Hills, Herbert Grossman, Los Angeles, for respondent.

SHINN, Presiding Justice.

The present action is for damages and an injunction. The damage issue was tried to a jury, which returned a verdict against Terrence Cooney and Sterling World Distributing Corporation, Inc. for $7,500 as compensatory damages and against Sterling for $35,000 as exemplary damages, which was reduced upon motion for a new trial to $7,500. Defendants made a motion for judgment notwithstanding the verdict, which was denied; they appeal from the judgment and from the order denying their motion. The facts as established by the evidence and as found by the jury and the court are quite simple. Plaintiff was the prosecutor in the case of People v. Chessman, 35 Cal.2d 455, 218 P.2d 769, 19 A.L.R.2d 1084, which plagued the courts of California for many years. Cooney conceived the idea of making a sound motion picture based upon the prosecution and imprisonment of Chessman. Leavy, at the solicitation of Cooney, consented to and did appear before the cameras and was photographed; he also acted as narrator.

The verdict implies, and the court found, in accordance with the contentions of Leavy, that he permitted himself to be photographed and his voice to be recorded as one of the participants in the picture upon the express understanding and agreement with Cooney that the picture was to be shown only on television, and would not be shown in theaters; Cooney breached the agreement by contracting with Sterling for theatrical exhibition; Sterling knew that Cooney did not have the consent of Leavy for theatrical display, but nevertheless exhibited the picture in from 500 to 750 theaters, over the protest of Leavy, and in willful disregard of his rights. The award of compensatory damages was based upon the testimony of Leavy that he suffered humiliation and embarrassment because of his fear and apprehension that if the picture should be shown in theaters the public would think he was being compensated for his participation in the project, and he would be subjected to severe criticism.

The brief of defendants specifies some twenty-five claims of error in the trial. First to be considered is the contention that it was alleged in the answer of Cooney that Leavy executed a release of all claims he might have arising out of the use of the film. A copy of a release, which did not bear the signature of Leavy, was attached to the answer of Cooney, no affidavit of Leavy denying execution of the release was filed, and therefore, it is claimed, under section 448 of the Code of Civil Procedure, Leavy was precluded from denying that he executed the release. The point is untenable. One of the issues stated in the pretrial order was whether Leavy had executed the release; that issue was fully tried without objection by defendants, and they thereby waived the right to claim that execution of the release was admitted. (Crowley v. City Railroad Co., 60 Cal. 628.)

It is argued that there was insufficient evidence to prove an agreement between Leavy and Cooney that the picture would only be shown on television as a news broadcast, and was not to be shown in theaters. The record contains evidence which clearly was sufficient to prove an agreement which limited the exhibition to television. Leavy so testified, and there was evidence that Cooney, knowing that Leavy placed a limitation upon the use of the film, proceeded to arrange for its exhibition in theaters. Upon these facts the jury and the court properly concluded that the theatrical use of the film was not authorized by Leavy.

With respect to compensatory damages it is contended on behalf of both defendants that no cause of action was established. Section 3300 of the Civil Code provides that, except where it has been otherwise provided, the measure of damages for breach of contract is the amount which will compensate the party aggrieved for the detriment proximately caused thereby, or which in the ordinary course of things would be likely to result therefrom. The section has been construed as limiting the damages to matters that were within the contemplation of the contracting parties. (Westervelt v. McCullough, 68 Cal.App. 198, 228 P. 734.)

In order to maintain their argument of nonliability defendants take the position that possible injury to plaintiff's feelings from the unauthorized use of the film was not in the minds of Leavy and Cooney when they concluded their arrangement, and that no injury was shown as a proximate result of the breach of the agreement by Cooney. In their argument of the point defendants ignore the reason given by Leavy for refusing to sign a release which would have given consent to projection of the picture in theaters. His parting remark in the interview with Cooney was 'I have never made a dime out of any case in which I have participated and I am not going to make it appear as though I have.' Cooney could not have failed to understand that Leavy believed that if the picture should be displayed in theaters the viewing public would suspect he had a commercial interest in it. The question for the jury was not whether the public would suspect a mercenary motive upon Leavy's part from use of the film in theaters and would not have the same suspicion when viewing it on television; it was what Leavy believed, and Cooney understood Leavy believed would be the public reaction to his participating in making the picture for display in theaters. The jury had the benefit of seeing and hearing Leavy as a witness. They believed his testimony as to his reason for not agreeing to the use of the film in theaters, and it was reasonable for the jury and the court to conclude that the parties had in contemplation that exhibition of the picture in theaters would cause Leavy embarrassment and humiliation.

The appeal is argued as if the action is only one for breach of contract, and we have considered the arguments for and against liability under section 3300, Civil Code. We do not, however, take the view that the wrongful actions of the defendants consisted only of the violation of plaintiff's rights under the contract.

Sterling had no contract with Leavy, and its conduct was clearly tortious. The contract between Leavy and Cooney related only to exhibition on television, and the wrong of defendants consists not only in the breach of an agreement not to exhibit the film in theaters, but also in the fact that it could not, under any circumstances, be so exhibited without the consent of Leavy, which he had not given. Defendants had no more right to show the pictures in theaters than they would have had it Leavy had refused to permit it to be shown publicly at all.

'For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this Code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.' (Civ.Code § 3333.)

As to Cooney the wrong consisted of breach of contract and also of a tortious invasion of Leavy's right of privacy; as to Sterling the wrong was the breach of an obligation not arising out of contract. The...