Morrison v. National Broadcasting Co.

• Decision Date: 23 December 1965
• Citation: 16 A.L.R.3d 1175,266 N.Y.S.2d 406,24 A.D.2d 284
• Parties: , 16 A.L.R.3d 1175 Joseph L. MORRISON, Plaintiff-Appellant-Respondent, v. NATIONAL BROADCASTING COMPANY, Inc., Jack Barry, Daniel Enright, Barry-Enright Productions, Inc., and Pharmaceuticals, Incorporated, Defendants-Respondents-Appellants, and Elfrida von Nardroff, Defendant.
• Court: New York Supreme Court — Appellate Division

Page 406

266 N.Y.S.2d 406

24 A.D.2d 284, 16 A.L.R.3d 1175

Joseph L. MORRISON, Plaintiff-Appellant-Respondent, v. NATIONAL BROADCASTING COMPANY, Inc., Jack Barry, Daniel

Enright, Barry-Enright Productions, Inc., and

Pharmaceuticals, Incorporated,

Defendants-Respondents-Appellants, and Elfrida von Nardroff,

Defendant.

Supreme Court, Appellate Division, First Department.

Dec. 23, 1965.

Roger Bryant Hunting, New York City (Margaret M. Hill, New York City, with him on the brief), for plaintiff-appellant-respondent.

Raymond L. Falls, Jr., New York City, of counsel (Daniel J. Givelber, New York City, with him on the brief; Cahill, Gordon, Reindel & Ohl, attorneys), for appellant National Broadcasting Co., Inc.

Arthur Karger, New York City, of counsel (Zoloto, Karger & Zurkow, New York City, attorneys), for appellants Jack Barry, Daniel Enright and Barry-Enright Productions, Inc. Roger A. Schultz, New York City, for appellant Pharmaceuticals, Inc.

Before BREITEL, J. P., and RABIN, VALENTE, EAGER and STEUER, JJ.

BREITEL, Justice Presiding:

This appeal involves a unique combination of operative facts. While the combination is unique and its novelty is the source of the difficulties in analysis, each of the facts is of a kind found in one or more of the recognized classifications in the law of torts.

Two questions are raised. The first is whether plaintiff's complaint states a cause of action, and the second is, if a claim is stated, whether it is barred by an applicable statute of limitations. The questions arise on cross-appeals from three orders on as many motions by different defendants to dismiss the several causes of action stated in the complaint for legal insufficiency and bar by statute of limitations. ¹

On one ground or another the first, second, third, and fifth causes of action were dismissed. The fourth cause of action addressed to a defendant never served was not the subject of attack. Only the first stated cause of action need be considered. As to this cause of action Special Term denied the motions as to insufficiency but, on reargument, granted them as to the bar of the statute of limitations. The dissenting opinion in this Court by Mr. Justice Steuer would dismiss the first cause of action for legal insufficiency and does not find it necessary to reach the limitations question.

Plaintiff appeals from the dismissal of the first cause of action on the ground of the statute of limitations. Defendants cross-appeal from so much of the orders as denied dismissal on the ground of legal insufficiency. It is concluded that a valid claim is stated and that it is not time-barred. Hence, the orders should be modified to deny the motions to dismiss the first stated cause of action and should otherwise be affirmed.

The conduct concerning which plaintiff complains and with which he was involved occurred in 1958, although it had its genesis earlier. The public exposure to which the complaint refers occurred in 1959. This action was begun in 1961.

The gist of the claim is that defendants, associated in various ways in television, acting in concert, falsely represented to plaintiff, a young university academic, that they were conducting an authentic and honest contest on television, a 'quiz' show, when in fact it was rigged. They made these misrepresentations in order to induce his participation as a contestant. As a result of his innocent participation and the public scandals thereafter occurring, plaintiff sustained harm to his good reputation and in particular was deprived of scholastic fellowships for which he had applied. For purposes of this appeal the description of the promotion and sponsorship of the program must be assumed to be true. As for the harm to plaintiff's reputation and prospects, and his innocent participation in the contest, for the present this too must be assumed to be true. The claim then charges defendants with corrupt purposes, lying to plaintiff to induce his innocent participation in a corrupt enterprise, as a result of which, on public exposure of the enterprise, plaintiff sustained harm to his reputation and academic prospects. In referring to corrupt purposes or enterprises it is not intended to suggest essential illegality but to import necessarily a violation of strong and prevalent moral standards with respect to competitive contests for material awards. The point is that everything that is not illegal is not therefore legitimate or sanctioned conduct.

Notably, each of the ultimate elements of the claim is a recognized element in the law of remedies for one sustaining harms. Nevertheless, defendants contend that there is a failure to state a claim or cause of action because the separate elements do not all fall into any one classic category of tort but are found only in a combination of such categories. If this be right, then once again our jurisprudence would suffer a hardening of its categories making neither for sense nor justice and mark a return to a specious procedural formalism. (See, generally, Halpern: Intentional Torts and the Restatement, 7 Buffalo L.Rev. 7, esp. 7-17.)

In the first place, misplaced speculation about the applicability of 'prima facie tort' doctrine to this case should be eliminated. That open-ended, non-category, class or sub-class of tort covers 'disinterested malevolence,' ² that is, the intentional malicious injury to another by otherwise lawful means without economic or social justification, but solely to harm the other (Prosser on Torts [3rd ed.], p. 978). The elements in this case are distinguishable and stronger. The means used were not lawful or privileged, in the sense of affirmatively sanctioned conduct, but were intentional falsehood without benevolent purpose uttered to induce action by another to his detriment. The ultimate purpose and the scheme were corrupt, in the sense that no socially useful purpose but only gain by deceit was intended, although perhaps not 'illegal.' Defendants were engaged in operating a dishonest contest. Innocent contestants were being cheated of the chances for rewards they thought they had. The public was being deceived as to the kind of spectacle it was viewing. Defendants lied to plaintiff to induce his innocent participation. They were engaged in the pursuit of economic gain for themselves. Hence, this is no instance of otherwise lawfully privileged means being made actionable, because without economic or social justification, and because of the exclusive purpose to injure plaintiff, which are the identifying qualities of so-called 'prima facie' tort.

Secondly, the claim is not for defamation, as defendants correctly argue, because defendants did not publish in any form anything derogatory to or concerning plaintiff. Instead, they put him in an unduly hazardous position where his reputation might be injured, not because this was their purpose, but because they did not care what happened to him in the pursuit of their purposes for selfish gain. Yet the harm sustained is exactly like that from defamation, albeit induced neither by slander nor libel. Thus, the causative acts are different from those in defamation, but the effect, that is, harm to reputation, is the same.

Thirdly, the acts of defendants are not in deceit although they fit precisely all but one of the several elements of deceit. They fall short with respect to the nature of the harm sustained by plaintiff. There is knowing misrepresentation of fact, for the purpose of inducing plaintiff to act, upon which he relies. But the resulting harm is not the obtaining of plaintiff's property, or even his services; instead, it is the putting him into a hazardous false position, that is, of a cheater or corrupt contestant, to which he would not have consented if he had known the truth. While the harm to plaintiff was never intended, for defendants were gambling that there would be no exposure, the risk of harm to plaintiff's reputation was known or should have been known and therefore completely foreseeable to defendants (cf. Ranney v. Habern Realty Corp., 281 App.Div. 278, 284, 119 N.Y.S.2d 192, 198, affd. 306 N.Y. 820, 118 N.E.2d 825). In this last respect there is a touch of an element in the law of negligence. But the claim is not for negligence, because while the harm may not have been intended, the act and effect of putting plaintiff into the false position of appearing to be a cheater was. It is not necessary that the intent in tort law be hostile (Prosser, op. cit., supra, p. 31; cf. Restatement, Torts 2d, § 13, Comment c).

In short, and in repetition, every element in plaintiff's claim descriptive of defendants' acts, his reliance, and the harm sustained, are identifiable in the most ancient of the tort categories and in the law of negligence. What is more important, the elements of defendants' conduct and the harm to plaintiff fall neatly within general principles of law, even if not within any of the numbered forms of a form books. The intentional use of wrongful means and the intentional exposure of another to the known, unreasonable risk of harm, which results in such harm, provides classic basis for remedy. The harm must, of course, have been intended, foreseeable, or the 'nature consequence' of the wrong. Even in intentional tort there is no liability for 'remote' harms (Restatement, Torts 2d, § 435B; 13 N.Y.Jur., Damages, §§ 61-63; Prosser, op. cit., supra, pp. 289, 748; cf., e. g., Steitz v. Gifford, 280 N.Y 15, 20-21, 19 N.E.2d 661, 663, 664, 122 A.L.R. 292; Milks v. McIver, 264 N.Y. 267, 269-270, 190 N.E. 487, 488). What troubled the lawyers in another day was not the intentional infliction of harm by wrongful means or for wrongful purpose, but harms inflicted without intention or by otherwise lawfully privileged conduct.

The root of the present trouble is that every kind of wrongful conduct, like lying, is not actionable per se. The analysis should not stop short, however, but must continue by examination of...