Tooley v. Canal Motors, Inc.

• Decision Date: 20 June 1974
• Docket Number: No. 5631,5631
• Citation: 296 So.2d 453
• Parties: John F. TOOLEY, Jr. v. CANAL MOTORS, INC., and Radio Station WNOE.
• Court: Court of Appeal of Louisiana — District of US

Page 453

296 So.2d 453

John F. TOOLEY, Jr. v. CANAL MOTORS, INC., and Radio Station WNOE.

No. 5631.

Court of Appeal of Louisiana, Fourth Circuit.

June 20, 1974.

Deutsch, Kerrigan & Stiles, Charles K. Reasonover, New Orleans, for plaintiff-appellant.

Phelps, Dunbar, Marks, Claverie & Sims, Esmond Phelps, II, New Orleans, for defendant-appellee Canal Motors, Inc.

Wilkinson & Wilkinson, James Wilkinson, III, New Orleans, for defendant-appellee WNOE, Inc.

Before SCHOTT, J., and LeBRUN and St. AMANT, JJ. Pro. Tem.

W. C. LeBRUN, Judge Pro Tem.

Plaintiff appeals from a dismissal of his suit for damages resulting from defendants' alleged invasion of his privacy.

On February 2, 1970, defendant, WNOE, began broadcasting a commercial 60-second spot advertisement which began as follows:

'The Canal Ford Knights don't sell cars; they sell people. A Canal Ford City Knight is a combination of all professions. John Tooley, Jack Simmons and Ty Loup, like lawyers, express their ideas clearly. . . .'

The advertisement continued by naming other individuals and attributing to them characteristics supposedly identifiable with various professions, such as great leaders, statesmen, teachers and bankers. The advertisement was delivered in fast talking style by a WNOE announcer and was somewhat garbled and difficult to understand. It was run generally during driving time in the morning and afternoon, and was to continue until February 19.

Plaintiff, who is a practicing attorney, became aware of the advertisement in conversations with friends and associates who, having heard the advertisement, inquired of him as to whether he was selling cars or whether he was still practicing law and conveyed to him the impression that they associated the John Tooley in the advertisement with the plaintiff. Plaintiff testified that as the week went on he received continuous inquiries and comments, many in a jocular vein. By February 7 he was able to make a tape recording and transcription of the advertisement in question.

Immediately thereafter he requested that defendants cease the use of his name in the advertisement. His letter to them contained the following:

'Reference to your salesman by the name of John Tooley, as a 'professional' and 'lawyer', intentionally misleads listeners into believing that John Tooley, the attorney, endorses or participates in the activities of Canal Motors. Such an inference is an invasion of Mr. Tooley's privacy and reflects upon his professional reputation.'

When the letter was received by the defendants about February 10, they were in a position to modify or withdraw the advertisement within a day thereafter but they elected to let the advertisement run its course for the duration of the original schedule.

Plaintiff testified that as the broadcasts continued, he continued to receive numerous inquiries and comments and he became concerned that the Louisiana State Bar Association might entertain a grievance against him because of advertising. Some of the comments were in the vein that his law practice must be such that he was finding it necessary to sell automobiles for economic reasons. He testified: 'After the commercial stopped, of course people would still rib me about it or ask me about it. Some of them even seriously asked me if I had quit the practice of law . . .' Plaintiff's testimony was corroborated by the testimony of another attorney who thought that plaintiff might be selling automobiles for defendant, Canal Motors.

In dismissing plaintiff's suit, the trial judge assigned the following reasons for judgment:

'Joseph John Tooley, a salesman at Canal Ford, Inc. was known as and used the name, 'John Tooley.'

'He permitted the Company to use his name in a Radio advertisement, the pertinent part of which is as follows: 'John Tooley, et al, like lawyers, express their ideas clearly.' . . .

'This Court finds from the testimony that no investigation was made by the defendants to see if there was a 'John Tooley' lawyer. However, there was no knowledge that there was an attorney named 'John Tooley.'

'The Court finds that the Plaintiff, John Tooley, suffered embarrassment and mental anguish over the situation. Any person in this situation would have suffered, and probably a lawyer more than most. However, the Court does not feel that under the law the actions of the Plaintiff constitute actional negligence as contended by the Plaintiff.' (Emphasis supplied)

In the case of Hamilton v. Lumbermen's Mutual Casualty Co., 82 So.2d 61 (La.App.1st Cir. 1955), where it was recognized that a plaintiff has a cause of action for invasion of his right of privacy the following definition of the right is found:

'It has been defined as 'the right to be let alone' and as 'the right to live one's life in seclusion without being subjected to unawarranted and undesired publicity.''

This case has been followed and recovery allowed in Lambert v. Dow Chemical Company, 215 So.2d 673 (...