Steding v. Battistoni

• Decision Date: 30 October 1964
• Docket Number: No. CV,CV
• Citation: 3 Conn.Cir.Ct. 76,208 A.2d 559
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: Karl STEDING v. Harry BATTISTONI. 17-639-1908.

Page 559

208 A.2d 559

3 Conn.Cir.Ct. 76

Karl STEDING v. Harry BATTISTONI.

No. CV 17-639-1908.

Circuit Court of Connecticut, Appellate Division.

Argued Sept. 14, 1964.

Decided Oct. 30, 1964.

Monroe S. Gordon, New Britain, for the appellant (defendant).

Howard R. Steeg, Bristol, for the appellee (plaintiff).

JACOBS, Judge.

The complaint alleged that 'on or about August 16, 1963, the defendant, without the knowledge or consent of the plaintiff and for his own personal advantage and gain caused an action to be commenced in the name of the plaintiff and others against three property owners in the Lake Garda area'; ¹ that the 'action was commenced and instituted by the defendant falsely and maliciously representing to the issuing authority that he had secured approval, authorization and consent of the plaintiff to institute such action when in fact he had received none'; and 'as a result of the defendant's actions, the plaintiff's right of privacy was invaded, he was ridiculed, embarrassed, scorned, suffered in his reputation and good name and his character has been injured.' The defendant's answer amounted to a general denial. The jury awarded the plaintiff damages in the amount of $2500. The court accepted the verdict. Judgment was rendered accordingly.

The recognition of the right of privacy in this state has not been questioned by the defendant. See Korn v. Rennison, 21 Conn.Sup. 400, 156 A.2d 476 (unauthorized publication of the plaintiff's photograph); ² Prosser, Torts § 112, p. 831, n. 21 (1964). It has been said that a person's name is rarely protected per se; Feinberg, 'Recent Developments in the Law of Privacy,' 48 Colum.L.Rev. 713, 723; that is to say, 'that a person has no such exclusive right to the use of his own name as to prevent the assumption of its use by another.' Hinish v. Meier & Frank Co., 166 Or. 482, 501, 113 P.2d 438, 446, 138 A.L.R. 1; Brown Chemical Co. v. Meyer, 139 U.S. 540, 544, 11 S.Ct. 625, 35 L.Ed. 247. When the question of the use of another's name has been posed, some other interest is usually involved; it is 'the standing of the personality in the eyes of third persons.' Green, 'The Right of Privacy,' 27 Ill.L.Rev. 237, 243. A person's name is a symbol of his existence, and it is through it that he is known to the world. See 1 Harper & James, Torts § 9.6 (1956). 'Nothing so exclusively belongs to a man or is so personal and valuable to him as his name. His reputation and the character he has built up are inseparably connected with it. Others can have no right to use it without his express consent, and he has a right to go into any court at any time to enjoin or prohibit any unauthorized use of it. Nor is it necessary that it be alleged or proved that such unauthorized use will damage him. This the law will presume.' State ex rel. LaFollette v. Hinkle, 131 Wash. 86, 93, 229 P. 317, 319. ³

In the Hinish case, supra, the defendants, without the plaintiff's knowledge or consent, signed the plaintiff's name to a telegram which they sent to the governor of the state of Oregon. The telegram urged the veto of a bill passed by the Oregon legislative assembly which would have prevented the defendants from continuing the practice of optometry. The court held (166 Or. p. 506, 113 P.2d p. 448) 'that the complaint plainly states a cause of action for breach of the plaintiff's right of privacy.' Thomas A. Edison, the world-renowned inventor, sued to enjoin the use of his name and was granted a decree where it was shown that the defendant came into possession of a medicinal preparation compounded by Edison and used, without Edison's permission or consent, the name 'Edison's Polyform' on the labels attached to the bottles. Edison v. Edison Polyform & Mfg. Co., 73 N.J.Eq. 136, 67 A. 392. President Emeritus Eliot of Harvard University was granted injunctive relief when he had at no time given his consent to the use of his name by the defendants in the advertisement and sale of books. Eliot v. Jones, 66 Misc. 95, 120 N.Y.S. 989, aff'd, 140 App.Div. 911, 125 N.Y.S. 1119 (N.Y.). Mary Garden, the famous opera singer, enjoined the use of her name in the advertisement and sale of perfume. Garden v. Parfumerie Rigaud, Inc., 151 Misc. 692, 693, 271 N.Y.S. 187, 189 (N.Y.) (holding 'it cannot be denied that her name and her portrait are her own and during life solely at her disposal'). Less prominent figures have been equally successful in preventing the unauthorized use of their names. See Uproar Co. v. National Broadcasting Co., D.C., 8 F.Supp. 358, modified on other grounds, 1 Cir., 81 F.2d 373 (use of a man's name without his consent on a radio program); Goodyear Tire & Rubber Co. v. Vandergriff, 52 Ga.App. 662, 184 S.E. 452 (defendant's agent telephoned a competitor, identifying himself as the plaintiff in order to learn confidential prices); Magouirk v. Western Union Telegraph Co., 79 Miss. 632, 31 So. 206 (another's name used as a signature to a telegram); Schwartz v. Edrington, 133 La. 235, 62 So. 660, 47 L.R.A.,N.S., 921 (publication of the plaintiff's name on list of petitioners for incorporation of a village). These decisions recognize that the right to be let alone--the right of an inviolate personality--is just as much a right as the right not to be assaulted and beaten, the right not to be falsely imprisoned, the right not to be maliciously prosecuted, and the right not to be defamed.

So, in the case before us, in finding the issues for the plaintiff, the jury must have found that what the defendant did, without the plaintiff's knowledge or consent and against his will, was to appropriate to himself, for his own personal advantage and gain, the use of the plaintiff's name, his personality and whatever standing he possessed in his community, and to inject it into a legal controversy in which, so far as appears, the plaintiff had no interest. This was not the mere incidental use of the plaintiff's name; ⁴ it was meaningful and purposeful. It was an unseemly and unbecoming intrusion into a man's privacy. See, generally, notes, 138 A.L.R. 22, 168 A.L.R. 446, 14 A.L.R.2d 750.

Only two assignments of error are pursued in the defendant's brief. The court, it was claimed, committed harmful error in permitting 'the testimony of Monroe S. Gordon, an attorney at law, as to confidential communications between [him and the] defendant.' It seems strange to us that, upon this record, such a claim should be so strenuously pressed. In his assignment of errors, under 'Part C,' relating to 'errors and rulings in the conduct of the trial,' a portion of the transcript in the form of an exhibit is made part of the record on appeal. In our examination of the exhibit, which is needlessly long and difficult to follow, we fail to see that the attorney-client relationship ever existed between the defendant and Gordon. ⁵ Moreover even if such a relationship were shown to have existed, the plaintiff was merely attempting to show by the question objected to the identity of the real party in interest in the litigation to which we have referred. ⁶ 'The identity of the attorney's client or the name of the real party in interest will seldom be a matter communicated in confidence because the procedure of litigation ordinarily presupposes a disclosure of these facts. * * * Every litigant is in justice entitled to know the identity of his opponents. He cannot be obliged to struggle in the dark against unknown forces. * * * On the other hand, the litigant is not entitled to ask any more than serves to fix the client's identity.' 8 Wigmore, Evidence § 2313 (McNaughton Rev. 1961). This is all the plaintiff attempted to establish, nothing more.

The remaining assignment of error is that the court erred in accepting the verdict because it was excessive. We point out that the record discloses that the difendant filed no requests to charge and took no exceptions to...