Manville v. Borg-Warner Corporation, 78-69.

• Decision Date: 14 November 1969
• Docket Number: No. 78-69.,78-69.
• Citation: 418 F.2d 434
• Parties: Donald D. MANVILLE, Appellant, v. BORG-WARNER CORPORATION, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

418 F.2d 434 (1969)

Donald D. MANVILLE, Appellant, v. BORG-WARNER CORPORATION, Appellee.

No. 78-69.

United States Court of Appeals Tenth Circuit.

November 14, 1969.

George Thomas Van Bebber, Troy, Kan. (James F. Duncan and Landon H. Rowland, Kansas City, Mo., on the brief), for appellant.

Kent E. Whittaker, Kansas City, Mo. (William V. North, Kansas City, Mo., on the brief), for appellee.

Before MURRAH, Chief Judge, and LEWIS and HILL, Circuit Judges.

HILL, Circuit Judge.

In this diversity suit appellant Manville sued appellee Borg-Warner for invasion of privacy. At the close of all evidence, appellee moved for a directed verdict. The motion was denied. Subsequently, the jury returned a verdict for Manville in the sum of $2500 actual damages and $7500 punitive damages. Upon entry of judgment, appellee renewed his motion in conjunction with a motion to set aside the jury verdict. Alternatively, appellee asked for a new trial. The trial judge granted appellee's motion for judgment notwithstanding the verdict and ordered that judgment be entered for plaintiff-appellant for nominal damages only. The trial judge also granted appellee's motion for a new trial in the event that the judgment n. o. v. should be vacated or reversed.

On his appeal, Manville contends that the trial judge erroneously applied the law of Kansas when he held that Manville could not recover substantial actual damages without proof thereof. Consequently, appellant maintains that it was error for the trial judge to grant judgment notwithstanding the verdict. The question on appeal is whether under the law of Kansas a plaintiff in an invasion of privacy suit can recover substantial damages without any proof of damages. In diversity suits, applying State law, the District Court's view on questions of State law will not be disturbed unless clearly erroneous.¹

Manville's suit was based upon several advertisements which appellee placed in the Wall Street Journal, The American Legion Magazine, the V.F.W. Magazine, and the Agricultural Equipment Dealer. The advertisements appeared at various time from 1964 through 1966. They depicted Manville standing in front of a Norge Village Laundry, and they contained some background material on him.

The events precipitating the ads began in 1964 when Manville was contacted by Huston Jones and Al Austin, both of whom were then working for Norge Division of appellee Borg-Warner Corporation. Manville was already acquainted with them through previous transactions involving Manville's self-service laundry business. Jones and Austin approached Manville as a potential purchaser of two Norge Village self-service laundries in Kansas City. Some agreement was arranged between Manville and the two Norge representatives whereby the three would purchase and promote the two Kansas City laundries.

Manville testified that in August, 1964, soon after the purchase of the two Norge laundries, Jones told him that Jones had a chance to run a feature article about Manville in the Wall Street Journal. Jones asked Manville to furnish background information and a photograph for the article. But Manville replied that he was not interested in being the subject of anything that looked like advertising. On other occasions Jones repeated his request. Eventually he prevailed because in September, 1964, Manville posed for a picture in front of one of the Norge Villages and submitted personal data in a letter to Jones.

Manville heard no more about the matter until November, 1964, when his banker showed him the current issue of the Wall Street Journal which contained Manville's picture in appellee's advertisement. The advertisement included words to the effect that Manville, as an owner of a Norge Village, endorsed Norge-equipped coin operated laundries as sound investment opportunities. Manville testified that upon seeing this ad, he tried to contact Jones. When he finally did see Jones, he told Jones that he thought there was to be a feature story instead of an ad, and he told Jones that he did not like it and did not want it run anymore.

Appellant Manville did not see the ad again until late July, 1965, when an insurance agent brought Manville's attention to The American Legion Magazine which contained the same ad. Manville renewed his earlier complaint. But this time he complained to appellee's credit manager at a meeting to discuss a dispute concerning Manville's account with appellee. Six months later appellee brought suit on the account dispute, and subsequent to that Manville brought the suit now on appeal.

It is clear that Kansas recognizes an action for invasion of privacy. But the cases do not make it entirely clear what proof of damage is required in such suits. In the instant case, there was no proof of the amount of Manville's damage. More important, there was no direct evidence that Manville was damaged at all since Manville himself did not even testify that he suffered embarrassment or any other form of mental anguish. Some inferences can be made from Manville's testimony that he told Jones and the credit man that he did not like the ad and did not want it run anymore. But, except for that, the record is barren of any proof on the issue of damages. Because Manville failed to show any substantial injury, his position on appeal must be that in such suits injury is presumed not only for purposes of pleading, but also is inferred by law for purposes of damages. Manville is entitled to a reversal and a reinstatement of the $10,000 jury verdict only if Kansas law allows substantial damages in privacy suits without proof of their amount or their existence.

Kunz v. Allen, 102 Kan. 883, 172 P. 532 (1918) was the first Kansas case to recognize the privacy action. It involved a demurrer sustained by the trial court on the ground that plaintiff failed to prove any actual damages from the invasion. The Supreme Court of Kansas reversed saying this was not necessary. Without more, this statement might indicate that a plaintiff suing for invasion of privacy need not prove any general or special damages, to recover substantial damages.² However, the cited cases and the explanatory...