Young v. That Was The Week That Was

• Decision Date: 09 June 1969
• Docket Number: No. C 65-268.,C 65-268.
• Citation: 312 F. Supp. 1337
• Parties: Fay YOUNG et al., Plaintiffs, v. THAT WAS THE WEEK THAT WAS et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

312 F. Supp. 1337

Fay YOUNG et al., Plaintiffs, v. THAT WAS THE WEEK THAT WAS et al., Defendants.

No. C 65-268.

United States District Court, N. D. Ohio, E. D.

June 9, 1969.

Conrad J. Morgenstern, Cleveland, Ohio, Francis A. Sciangula, Rocky River, Ohio, for plaintiff.

Victor DeMarco and Patrick F. McCartan, Cleveland, Ohio, for defendant.

MEMORANDUM OPINION AND ORDER

LAMBROS, District Judge.

This is a class action. Plaintiffs sue on their own behalf and on behalf of all others similarly situated. The defendants are certain organizations and individuals associated with the television program "That Was The Week That Was."

The plaintiffs have named as a defendant the program itself. They have named the National Broadcasting Company and Westinghouse Broadcasting Company, both of which televised the program. They have named the Colgate-Palmolive Company, P. Lorrilard Company, and the Caryl Richards Cosmetics, Inc., all of which sponsored the show. They have also sued Leland Hayward Productions, Inc., which produced the show, and six individual defendants who either appeared on the show or were responsible for its contents.

The six individual defendants and Leland Hayward Productions, Inc., have previously been dismissed from this action. In addition, the television program itself has not been served with process. The remaining defendants have now moved the Court for summary judgment in their favor and against the plaintiffs.

The essential facts are not in dispute. Plaintiffs are the children, grandchildren, great-grandchildren, and great-great-grandchildren of one Katherine Young. Mrs. Young, who was a resident of Syracuse, New York, died at the age of 99 on April 6, 1965. At the time of her death, she was survived by 5 sons, 5 daughters, 67 grandchildren, 172 great-grandchildren, and 73 great-great-grandchildren.¹

"That Was The Week That Was" (hereinafter referred to as TW-3) was a program televised weekly by the defendant, National Broadcasting Company (hereinafter referred to as NBC). The program was sponsored by the defendants, Colgate-Palmolive Company, P. Lorrilard Company, and the Caryl Richards Cosmetics, Inc. It was carried in Cleveland, Ohio over the facilities of KYW-TV, a television station owned and operated by defendant Westinghouse Broadcasting Company. The program was directed toward humorous and satirical comment on current events, issues, and personalities.

Plaintiffs allege that the television program involved here was televised throughout the United States. Defendants have not controverted this fact.

During the course of TW-3 telecast of April 20, 1965, the following statement was made concerning Mrs. Katherine Young: "Mrs. Katherine Young of Syracuse, New York, who died at 99 leaving 5 sons, 5 daughters, 67 grandchildren, 72 great-grandchildren, and 73 great-great-grandchildren, gets our First Annual Booby Prize in the Birth Control Sweepstakes."

The plaintiffs allege that this statement was made "wantonly, maliciously, negligently, and without regard to the rights of plaintiffs and without plaintiffs' knowledge and without plaintiffs' consent." The defendants have not admitted this allegation, but assume that it is true for purposes of their motion for summary judgment.

On the basis of the statement referring to Katherine Young, which occurred in the course of the defendants' television presentation, the plaintiffs have filed their complaint, which alleges two separate causes of action. Plaintiffs' first cause of action alleges that as a result of this statement, plaintiffs were caused to suffer "humiliation, chagrin, insult, injury and embarrassment." Plaintiffs allege that the statement "impugns the lineage, origins and good name and reputation of all members of the family and descendants of Katherine Young." Plaintiffs further allege: "It infers that their origins were the product of excessive sexual activity, abnormal and socially unacceptable behavior, and is an insult inflicted upon them which time cannot eradicate."

Plaintiffs' first cause of action alleges that the statement invaded the privacy of the plaintiffs. Plaintiffs' second cause of action alleges that the defendants portrayed Katherine Young in a derogatory, insulting, and excessively personal manner so as to impugn the lineage, origin, good name, reputation, image, and community standing of the family and descendants of Katherine Young, and that this portrayal was for the defendants' own economic enrichment. The cause of action further alleges that the defendants, as a result of this portrayal, have been unjustly enriched without regard to the rights of the plaintiffs and without the plaintiffs' consent.

Plaintiffs seek damages for their first cause of action in the amount of five million dollars. They seek a similar amount of damages for their second cause of action and also pray for five million dollars punitive damages from the defendants.

It appears that the law to be applied in this case is that of Ohio. Most courts considering the choice of law in right of privacy cases have applied the law of the plaintiff's residence, since that is the jurisdiction in which the plaintiff sustained his injury. Bernstein v. NBC, 129 F.Supp. 817 (D.C. 1955), aff'd on district court's opinion, 98 U.S.App.D.C. 112, 232 F.2d 369 (1956), cert. den. 352 U.S. 945, 77 S.Ct. 267, 1 L.Ed.2d 239 (1956); Restatement of the Law 2d, Conflict of Laws, § 153. Although the law of the plaintiff's residence is applied, the cases permit the plaintiff to recover at that place the whole amount of damage for harm inflicted upon him as a result of publications in other jurisdictions. Bernstein v. NBC, supra; Restatement of Torts, § 652.

The choice of law in the instant case might involve a minor problem, since this is a class action and some of the plaintiffs may reside in other states. As one court has pointed out, however: "The authoritative material on the right of privacy is not developed so far that we are confronted * * * with a difference in law of the various states which would necessitate a choice, choosing one rule to be applied and rejecting another." Leverton v. Curtis Pub. Co., 192 F.2d 974, 976 (3d Cir. 1951) at page 976.

There are few significant differences in the law of the various states which recognize a right of privacy. The right of privacy is a relatively new form of action, and the right recognized in most states derives originally from a law review article published in 1890. In addition, most states apply the rule as enunciated in the Restatement of Torts, § 652. It appears, then, that although some of the plaintiffs within the class present here may reside in states other than Ohio, no significant conflict of laws problem is presented.

Ohio applies the general rule relating to right of privacy, which is best articulated in the Restatement of Torts, § 652. The leading Ohio case on the subject is Housh v. Peth, 165 Ohio St. 35, 133 N. E.2d 340 (1956). The court's syllabus in that case reads as follows:

"Syllabus 1. The right of privacy is the right of a person to be let alone, to be free from unwarranted publicity, and to live without unwarranted interference by the public in matters with which the public is not necessarily concerned.

"Syllabus 2. An actionable invasion of the right of privacy is the unwarranted appropriation or exploitation of one's personality, the publicizing of one's affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities."

The plaintiffs assert that their right of privacy was invaded by the satiric reference to their relative, Katherine Young, in the course of the defendants' television program.

The defendants have raised a number of defenses, certain of which are before the Court in the defendants' motion for summary judgment.

The defendants assert that the complaint does not state a claim, since the right of privacy is a personal right and there can be no recovery for the publication of information about another person.

The statement made on the defendants' television program mentioned only the name of Katherine Young. Plaintiffs were not themselves mentioned by name on the program or identified in any other way. Can the plaintiffs recover for the publication of this information about their deceased relative?

The right of privacy has always been treated by the courts as a personal right fashioned to protect an individual's solitude. The right is not violated, unless there is some unwarranted disclosure or exploitation of the private affairs or the personality of the complaining party himself. Starrels v. Commissioner, 304 F.2d 574 (9th Cir. 1962); Gruschus v. Curtis Pub. Co., 342 F.2d 775 (10th Cir. 1965); Metter v. Los Angeles Examiner, 35 Cal.App.2d 304, 95 P.2d 491 (1939); Kelly v. Johnson Pub. Co., 160 Cal.App.2d 718, 325 P.2d 659 (1958); Werner v. Times-Mirror Co., 193 Cal.App.2d 111, 14 Cal.Rptr. 208 (1961); Carlson v. Dell Pub. Co., 65 Ill. App.2d 209, 213 N.E.2d 39 (1965); Kelley v. Post Pub. Co., 327 Mass. 275, 98 N.E.2d 286 (1951); Brauer v. Globe Newspaper Co., 351 Mass. 53, 217 N.E. 2d 736 (1966 Mass.); Atkinson v. John E. Doherty & Co., 121 Mich. 372, 80 N. W. 285, 46 L.R.A. 219 (1899); Schuvler v. Curtis, 147 N.Y. 434, 42 N.E. 22, 31 L. R.A. 286 (1895); Schumann v. Loews, Inc., 144 N.Y.S.2d 27 (S.Ct.N.Y.1955); Rome Sentinel Co. v. Boustedt, 43 Misc. 2d 598, 252 N.Y.S.2d 10 (1964); Runyon v. United States, 281 F.2d 590 (5th Cir. 1960); Milner v. Red River Valley Pub. Co., 249 S.W.2d 227 (Tex.Civil Appeals 1952).

Virtually all the cases which have passed upon this question (cited above) have held that an individual has no cause of action for invasion of his privacy, where the defendant published information concerning the individual's deceased relative. Gruschus v. Curtis Pub. Co., supra, for...