Jeppson v. United Television, Inc.

580 P.2d 1087, 3 Media L. Rep. (BNA) 2513, 1978 Utah LEXIS 1333

• Court: Utah Supreme Court
• Decided: May 26, 1978
• Docket: 15318
• Status: Published

Opinions

WILKINS, Justice:

Plaintiffs appeal from an order of the District Court, Salt Lake County, granting defendant’s motion to dismiss plaintiffs’ complaint for. failure to state a claim for which relief could be granted. All statutory references are to Utah Code Annotated, 1953.

Plaintiffs allege in their complaint that an agent and employee of defendant, as a part of the television program “Dialing for Dollars,” telephoned plaintiffs at their residence on March 11, 1977, and had the following conversation with Plaintiff Jean W. Jeppson:

He: This is “Dialing for Dollars,” do you have your T.V. set on?

She: No, I don’t.

He: Oh, that is unfortunate, because you could have won $50.00.

She: Well now I’ll tell you, I’d rather have peace in my home than all that garbage on television, even for $50.00.

Without the knowledge of Mrs. Jeppson, defendant’s agent had announced the Jepp-son name and telephone number on the air, and televised the conversation without advising Mrs. Jeppson, and without obtaining her consent. Immediately after this conversation, and continuing all of the remainder of the afternoon, plaintiffs allege they received calls from people all over the state of Utah, who referred to this conversation, and used rude, abusive, obscene and threatening language, all of which caused plaintiffs to be embarrassed, and humiliated, and to fear for their safety and well being.

Plaintiffs pray for relief on three separate theories: (1) invasion of common law right of privacy, (2) abuse of plaintiffs’ personal identity in violation of the provisions of Section 76-9-405, and (3) intentional and malicious infliction of emotional and mental harm.

If the allegations contained in plaintiffs’ complaint state a claim upon which relief may be granted on any one of these theories the Order of the District Court dismissing the complaint must be reversed.

Section 76-9-405 and 76-9-406, respectively, provide:

(1) A person is guilty of abuse of personal identity if, for the purpose of advertising any articles of merchandise for purposes of trade or for any other advertising purposes, he uses the name, picture, or portrait of any individual or uses the name or picture of any public institution of this state, the official title of any public officer of this state, or of any person who is living, without first having obtained the written consent of the person, or if the person be a minor, the written consent of his parent or guardian, or if the person is dead, without the written consent of his heirs or personal representatives.

Any person, or the heirs of any deceased person, who has been injured by a violation of this part may bring an action against the person who committed the violation. If in the action the court finds the defendant is violating or has violated any of the provisions of this part, it shall enjoin the defendant from a continuance thereof. It shall not be necessary that actual damages to the plaintiffs be alleged or proved, but if damages are alleged and proved, the plaintiff in the action shall be entitled to recover from the defendant the actual damages, if any, sustained in addition to injunctive relief. A finding that the defendant is in violation of this part shall entitle the plaintiff to reasonable attorney’s fees. Exemplary damages may be awarded where the violation is found to be malicious.

In the case of Donahue v. Warner Bros. Pictures Distributing Corp., 2 Utah 2d 256, 272 P.2d 177 (1954), this Court construed the predecessor statute to section 76-9-405 in considering whether the showing in the State of Utah of a motion picture based partially on the life of Jack Donahue gave rise to a claim for relief in favor of his heirs on the theory that said motion picture was shown “for purposes of trade”.¹ In that case, this Court rejected the contention that the statute proscribed the publication of a name or picture in all cases when a profit motive is present, and held that the statute proscribes only such use “for advertising or exploitation of the name or picture or for the promotion of the sale of some collateral commodity ...”

The statute was changed in 1973 and now clearly contains the limitation adopted by this Court in Donahue.

Plaintiffs allege in their complaint that defendant’s program, “Dialing for Dollars” is presented solely for the purposes of advertising its television station, and increasing the viewers of its programs. They maintain that defendant’s publication of their name and number without their knowledge and consent for the purposes of such advertising is within the proscription of the statute. We agree.

The District Court, in ruling on defendant’s motion to dismiss, evidently found that plaintiffs had waived their rights of privacy, and had invited people to call their residence by having their name and number published in the telephone book. The violation of the statute, however, consists of the publication of the name on the air without plaintiffs’ prior written consent. Plaintiffs complaint states a claim for which relief may be granted under the statute.

As this point is dispositive we do not discuss the remainder of plaintiffs’ contentions.

Reversed and remanded for further proceedings not inconsistent with this opinion. Costs to plaintiffs.

MAUGHAN and HALL, JJ., concur.

1 . Section 76-4-8, repealed in 1973, provided in contrast to the present language: “Any person who uses for advertising purposes or for purposes of trade, or upon any postal card, the name, portrait or picture of any person . . ”