Stilson v. Reader's Digest Assn., Inc.

• Decision Date: 25 October 1972
• Court: California Court of Appeals Court of Appeals
• Parties: Bruce W. STILSON et al., Plaintiffs and Appellants, v. The READER'S DIGEST ASSOCIATION, INC., et al., Defendants and Respondents. Civ. 29743.

Page 581

104 Cal.Rptr. 581

28 Cal.App.3d 270

Bruce W. STILSON et al., Plaintiffs and Appellants, v. The READER'S DIGEST ASSOCIATION, INC., et al., Defendants and Respondents.

Civ. 29743.

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

Oct. 25, 1972.

Hearing Denied Dec. 20, 1972.

James B. McKenney, Bruce W. Stilson, San Rafael, Guy W. Shoup, New York City, for appellants.

Bagley, Bianchi & Sheeks, by Albert Bianchi, San Rafael, Pillsbury, Madison & Sutro, San Francisco, for respondents.

DRAPER, Presiding Justice.

This appeal presents another aspect of the problems in the burgeoning field of class actions. The two named plaintiffs sue on behalf of themselves and all others similarly situated.

It appears from admissions sought by plaintiffs and made by defendant that in 1970 defendants conducted two 'sweepstakes' in which they offered substantial prizes. Typed letters, personalized by a computer tape process, were mailed by defendants, enclosing books of tickets or chances on the sweepstakes. The addressees of these letters constitute the class for which this action is brought. In the first drawing, the letter read, in part, 'You and two other members of the Reader's Digest family (naming two) are among the people in (name of city) whose names have been selected from a list of U.S. residents to receive a personal Lucky Number 'Bankbook' in our new' sweepstakes. The letter concerning the second 'sweepstakes' omitted the reference to the Reader's Digest family. It said: 'Good news for you and other selected residents of (name of city). You--and your fellow townsmen--(naming two) are among those from this area whose names have been selected' etc. Presumably, a like letter, using the name of the earlier addressee, went to each of the two named in it, similarly using plaintiffs' name. Subscription to the magazine was not required as a condition to inclusion of these numbers in the drawing, but it is apparent that the design was ultimately to secure subscriptions. It is also apparent that the name of any one individual was used only in the mailing to him and to two others. The complaint alleges that such use of the name of each plaintiff, named or unnamed in the complaint, was without his authorization.

Although the complaint seeks damages and injunctive relief as to all mailings within the period of the statute of limitations, the only information we have as to numbers is found in the deposition taken by plaintiff of an executive of defendant. This deposition relates only to the two 'sweepstakes' of 1970. Deponent's figure, not questioned by either party, is that mailings were made to approximately 21,300.000 persons in the first 1970 drawing, and to approximately 29,000,000 in the second. We have no information as to the percentage of duplication in the two mailings, but it is clear that the 'class' numbers from 21 to 50 millions, even if the 1970 mailings were the only ones.

Defendants moved to strike the allegation relating to others than the named plaintiffs. Plaintiffs sought a temporary injunction. The motion to strike was granted. Plaintiffs appeal.

The unauthorized use of one's name for commercial exploitation is actionable (Fairfield v. American Photocopy, etc., Co., 138 Cla.App.2d 82, 291 P.2d 194; Prosser, Privacy (1960) 48 Cal.L.Rev. 383, 401--7). Special damages need not be shown (Fairfield v. American Photocopy, etc., Co., supra, p. 89, 291 P.2d 194). But a plaintiff is entitled to show special circumstances, including any mental anguish caused to him, in establishing damages in excess of the merely nominal (id., pp. 88--91, 291 P.2d 194). The gist of the cause of action here asserted is a wrong 'resulting in injury to the feelings;' it 'concerns one's own peace of mind;' and the injury is 'mental and subjective' (Kelly v. Johnson Publishing Co., 160 Cal.App.2d 718, 721, 325 P.2d 659).

Plaintiffs-appellants argue that they have met the requirement of showing a 'well defined community of interest in the questions of law and fact involved affecting the parties to be represented' (Daar v. Yellow Cab Co., 67 Cal.2d 695, 704, 63 Cal.Rptr. 724, 731, 433 P.2d 732, 739).

The authorities cited above articulate the well-established principle of law that one whose name is used for a commercial purpose without authorization has a right to mere 'nominal' damages, i.e., 1cents to $1 each. There may well be little dispute as to absence of authorization by most of the unnamed plaintiffs. Thus, if commercial exploitation be found, they would be entitled to nominal recoveries upon little more than election to proceed. But nominal damages involve only a trivial sum. They "are damages in name only, not in fact, * * * the same as no damages" (Price v. McComish, 22 Cal.App.2d 92, 100, 70 P.2d 978, 982). As to such damages, it is the legal principle, and not contested issues of either law or fact, which are common to all in the class. But, as pointed out in Fairfield, each such plaintiff has an established right ot show the mental anguish, as well as the financial detriment, which may have been caused to him by the use of his name in letters to two other persons. This necessarily would involve evidence of the mental and subjective state of each plaintiff who sought more than nominal damages, and could well concern the status and...