Rhodes v. Sperry & Hutchinson Co.

This action is brought under chapter 132, p. 308, Laws 1903, entitled “An act to prevent the unauthorized use of the name or picture of any person for the purposes of trade.” In June, 1904, the plaintiff sat in various poses for her photograph to Mr. Young. She accepted and paid for some of them. In November, 1904, Mr. Young made a contract with the defendant, whereby he agreed to take photographs for collectors of the defendant’s trading stamps. The defendant, who was a promoter of this scheme of trade, kept an office in West Twenty-Third street, in the borough of Manhattan, whereat it displayed specimens of the work of the various tradesmen who were associated with this scheme. There was a wall case and a counter showcase in the office, and therein were displayed various photographs, the work of Mr. Young, with a placard of his calling and place of business. There were about 40 photographs furnished by Mr. Young. Among them were several photographs of the plaintiff— one in the wall case, and two in the showcase. This office was visited daily by many people. The plaintiff never consented in writing or otherwise to this exhibition. The plaintiff gained an interlocutory judgment after trial at Special Term which was affirmed by us. 114 App. Div. 920 , 100 N. Y. Supp. 1140 . The question of damages was

The appellant contends (1) that there is no evidence that the photographs were exhibited by the defendant for any purpose; (2) that there were errors in the rulings of the court; (3) that the damages are excessive; and (4) that the statute is unconstitutional. The first and fourth propositions were specifically presented upon the former appeal, and I need not consider them. There remain, then, for consideration the contentions (1) that the court erred in its rulings; and (2) that the damages are excessive.

1. Three rulings are criticized: (a) The court refused to permit a question to Mr. Young whether he had exhibited the photograph in the shop of the defendant. The Special Term, whose judgment we affirmed ut supra, found that the defendant was using, displaying the pictures or photographs of the plaintiff for advertising purposes. Whether Mr. Young in his opinion had made the exhibition did not materially affect the act of the defendant or its liability therefor, (b) The court refused under objection to permit the question whether Mr. Young made a contract with the defendant whereby he was allowed to display his pictures. Whether or not there was a contract between Mr. Young and the defendant could not qualify the defendant’s own act in its relation to the plaintiff. And, moreover, the evidence is that the defendant had issued 3,000 orders on Mr. Young which were in a large measure due to this exhibition in the office of the defendant. Further, the defendant was permitted to show that Mr. Young caused the photograph to be put in the frame and that his servant hung them in the defendant’s shop, (c) As to the third question, it suffices that the answer is upon the record with full force.

2. It seems to me, however, that the damages are excessive. The learned court charged the jury that they could give exemplary damages ; and, as there is no indication to the contrary in the verdict, I cannot say that the verdict does not embrace both kinds of damages. It is true that in actions of willful tort damages may be awarded for mental distress, humiliation, and the mortification alone. Preiser v. Wielandt, 48 App. Div. 569 , 62 N. Y. Supp. 890 ; Smith v. Leo, 92 Hun, 242 , 36 N. Y. Supp. 949 . The plaintiff has testified that this act complained of “humiliated” her, “made her nervous” and “upset her,” and such testimony might naturally be credited by a jury. And the circumstances are somewhat different from a display by a photographer in his own show window. For these photographs, though shown as specimens of a photographer’s art, were exhibited in the promotion of a catch-penny scheme, somewhat in the nature of giving a customer more than the same money would obtain at ordinary purchase. That difference may be illustrated by a bit of testimony in the case. The plaintiff testifies that a woman relative (evidently “a candid friend”) came to her, “kind of laughed satirically, and she said, T saw your picture in Sperry’s trading-stamp store; that is very funny.’ ” On the other hand, the act complained of in no way re-

Considering, then, both elements of damage as embraced in the verdict, I think that full justice will be meted out if the damages are reduced to $300. My Brethern do not concur in my views as to a reduction, and therefore the order and judgment are affirmed, with costs.