Volk v. Auto-Dine Corp.

• Citation: 177 N.W.2d 525
• Decision Date: 28 May 1970
• Docket Number: No. 8594,AUTO-DINE,8594
• Parties: Margaret VOLK, Plaintiff and Appellant and Cross-Respondent, v.CORPORATION, Defendant and Respondent and Cross-Appellant. Civ.
• Court: North Dakota Supreme Court

Page 525

177 N.W.2d 525

Margaret VOLK, Plaintiff and Appellant and Cross-Respondent, v. AUTO-DINE CORPORATION, Defendant and Respondent and Cross-Appellant.

Civ. No. 8594.

Supreme Court of North Dakota.

May 28, 1970.

Syllabus by the Court

1. A moving party is entitled to a summary judgment if it appears that there is no genuine issue as to any material fact, and that a movant is entitled to a judgment as a matter of law. Rule 56(c), N.D.R.Civ.P.

2. The fact that both parties have moved for summary judgment pursuant to Rule 56, N.D.R.Civ.P., does not establish that there is not a genuine issue of fact to be determined.

3. Where a party consents to the use of her receipe, name, and photograph, she has no action for an invasion of her right of privacy in the instant case, and the district court did not err in granting a summary judgment.

4. We find, pursuant to Rule 56(c), N.D.R.Civ.P., that there are genuine issues as to material facts; that is, whether or not there was an agreement between the parties and, if so, what compensation was contemplated by the parties and, therefore, the granting of a summary judgment by the district court was improper.

5. Where the summary judgment is reversed and the taxable costs as determined by the district court are an integral part of that judgment, the appeal from the order reducing the taxable costs and that part of the summary judgment modified by the order reducing taxable costs will not be considered by this court, since the awarding of costs is dependent upon which party prevails upon a final determination of the case on the merits. § 28--26--06, N.D.C.C.

Rausch & Chapman, Bismarck, for plaintiff and appellant, and cross-respondent.

Zuger, Bucklin, Kelsch & Zuger, Bismarck, for defendant and respondent, and cross-appellant.

PAULSON, Judge.

This is an appeal from a judgment dismissing the causes of action of Margaret Volk entered pursuant to an order of the district court granting a motion for summary judgment in favor of the Auto-Dine Corporation. Auto-Dine has also taken an appeal from the order of the district court ordering the disallowance of certain costs, and from that portion of the judgment of the district court as modified by said order reducing the taxable costs.

The plaintiff, Margaret Volk, in her complaint, for her first cause of action, alleged that the defendant, the Auto-Dine Corporation, used her recipe for cole slaw and advertised and sold cole slaw designated as 'Mother Volk's Cole Slaw' in its retail food-dispensing stores; that she consented to the use of her recipe and her name with the reasonable expectation of payment; that no payment had been made to her; and that Auto-Dine derived benefit and profit from the use of her recipe and her name, for which she is entitled to reasonable compensation. Margaret Volk, for her second cause of action, re-alleged the same allegations set forth in her first cause of action, and further alleged that the use of her name in Auto-Dine's advertisement without compensation to her was an invasion of her right of privacy, thus entitling her to reasonable compensation. Margaret Volk demanded judgment against Auto-Dine in the sum of $15,000 plus her costs and disbursements.

The defendant, the Auto-Dine Corporation, answered both causes of action by generally denying all of the allegations set forth in the complaint of Margaret Volk and alleged that her complaint failed to state a cause of action upon which relief could be granted; that Carrol Hugh Sanders is a son-in-law of Margaret Volk and was the manager of one of the Auto-Dine stores; that Margaret Volk voluntarily permitted her son-in-law, Carrol Hugh Sanders, to use her cole slaw recipe and her name in the advertisement and sale of 'Mother Volk's Cole Slaw' in the operation of one of the Auto-Dine stores without making any demand upon Auto-Dine for payment or compensation, and that by such failure she is estopped from making a claim for any compensation for the use of her recipe and her name before she notified Auto-Dine that she was withdrawing her consent to such use; that the alleged agreement set forth in Margaret Volk's complaint is barred by the North Dakota statute of frauds because the agreement was not in writing and its terms could not be performed within one year from the making thereof; that Auto-Dine did not use Margaret Volk's recipe or her name after receiving notice from her that the gratuitous use of her recipe and her name would no longer be permitted after Carrol Hugh Sanders' employment with Auto-Dine was terminated; that Margaret Volk has waived any breach of an alleged contract; and Auto-Dine further alleges, as affirmative defenses, failure of consideration, publication, and payment. Auto-Dine prayed that Margaret Volk's causes of action be dismissed and that it be awarded its costs and disbursements.

Auto-Dine also served a third-party complaint upon Carrol Hugh Sanders, alleging that it received from him the right to use the cole slaw recipe and the name of Margaret Volk; that Sanders represented to Auto-Dine that no compensation was expected for the use of Margaret Volk's recipe and her name and, therefore, upon such representation, Auto-Dine did use the recipe and name of Margaret Volk until notified by her that the right to use her recipe and her name was withdrawn. Auto-Dine therefore demanded judgment against Carrol Hugh Sanders for all sums, if any, which might be adjudged against Auto-Dine in favor of Margaret Volk, together with its costs and disbursements.

Carrol Hugh Sanders, in his answer to Auto-Dine's third-party complaint, alleged that he was employed by Auto-Dine, but denied that he represented to Auto-Dine that there would be no compensation expected for the use of Margaret Volk's recipe and name; that he advised Robert J. Dean and Robert C. Waechter, officers and directors of Auto-Dine, that he could obtain a cole slaw recipe from Margaret Volk and, at their request, he did so; that they thereupon stated that they would take care of her; that the officers of Auto-Dine further desired the use of Margaret Volk's name in advertising the cole slaw, and Robert J. Dean stated that he would contact Margaret Volk and take care of her; that a photograph of Margaret Volk was also taken for the further advertising of 'Mother Volk's Cole Slaw'; that Auto-Dine did use Margaret Volk's recipe and advertised the cole slaw in its store locations and in other media as 'Mother Volk's Cole Slaw'; that Sanders, of his own knowledge, knew that Margaret Volk understood and expected that she would be fairly compensated for the use of her recipe and her name, but that the amount of such compensation would be determined between Auto-Dine and Margaret Volk. Carrol Hugh Sanders therefore prayed that the third-party complaint be dismissed and that he receive his costs.

Auto-Dine moved for summary judgment to dismiss Margaret Volk's causes of action on the grounds that there was no genuine issue as to any material fact and that Auto-Dine was entitled to a judgment as a matter of law. Auto-Dine based its motion upon all of the pleadings, upon the discovery depositions of Carrol Hugh Sanders and Margaret Volk, and upon the affidavit of Robert J. Dean.

Margaret Volk also moved for summary judgment in her favor and against Auto-Dine on the issue of liability alone, leaving to the jury the determination of the amount of damages that would be awarded to her. Margaret Volk based her motion upon the pleadings, files, depositions, and interrogatories and responses which were filed with the court.

The district court found that if Margaret Volk had a cause of action it was based on contract, either express or implied; that the record showed that any use of her recipe was not accomplished through a breach of confidence or subject to any equitable obligation not to use the same; and that the evidence led to the conclusion that there was a meeting of the minds and that Margaret Volk's rights were limited to the benefits which might be obtained from the use of the 'Gold Card' she received from Auto-Dine. The court concluded that there was no genuine issue as to any material fact and therefore granted a summary judgment in favor of Auto-Dine, and dismissed Margaret Volk's causes of action....