Paramount Productions, Inc. v. Smith

91 F.2d 863, 1937 U.S. App. LEXIS 4364

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 26, 1937
• Docket: 8288
• Status: Published

Opinions

HANEY, Circuit Judge.

Judgment was rendered for appellee in his action against appellant for breach of contract, and the latter appealed.

It is admitted by the pleadings that appellee is the sole author of a story entitled “Cruise to Nowhere”; that appellee sold the story to appellant on April 29, 1933, for $2,500, as evidenced by a written contract containing the terms and conditions of the sale. This contract contains .the following provisions:

“Second: The Author hereby grants to the Purchaser all the motion picture rights throughout the world, in and to and in connection with the said story, together with the sole and exclusive rights to use, adapt, translate, subtract from, add to and change the said story and the title thereof, in the making of motion picture photoplays and/or as a part of and/or in conjunction with any motion picture photoplay and/or to combine the said story with any other work, to use the said title and/or any similar title in conjunction with motion picture photoplays based upon the said story and/or other literary, dramatic and/or dramatico-musical workds [works]. if. if if”

“Eighth: The Purchaser agrees to announce on the film of the motion picture photoplays that may be produced pursuant hereto that such motion picture photo-plays are based upon or adapted from a story written by the Author, or words to that effect.”

In paragraph “Second,” supra,-by the use of the recondite and occult typographical jumble “and/or,” a near approach to totality of confusion and unintelligibility has been accomplished, but, inasmuch as the determination of this appeal is dependent upon the construction of the eighth paragraph of the contract rather than the second, we abandon without regret all effort to determine, by reference to its written word, the meaning, if any there be, of the provisions of the second paragraph aforesaid.

The complaint alleged that in 1934 appellant completed the production and thereafter exhibited generally throughout the United States a “talking motion picture” under the title of “We’'re Not Dressing,” which “was based upon, and adapted from, said original story of plaintiff herein, entitled ‘Cruise to Nowhere’ * * * ”; that appellant violated the eighth provision of the contract quoted, in that appellant “wholly failed to announce upon said films, or at any of the public exhibitions thereof, that the same was either written by plaintiff, or that it was based upon, or adapted from, a story written by” appellee. Appellant admitted production and exhibition of the picture “We’re Not Dressing,” but denied the remainder of these allegations.

At the trial appellee introduced into- evidence over appellant’s objections a sheet showing production cost prepared by appellant’s accounting department. This sheet contained the following:

“Production No. 983.

“Title ‘We’re Not Dressing*.

“From Story ‘Cruise to Nowhere*. ”

The objection was “upon the ground that no proper foundation is laid to show that anyone connected with the accounting or auditing department, or that department itself, had anything to do with selecting either the title for a given picture, or determining whether a given picture should be based upon or adapted from a given story or not.”

Appellee also offered in evidence an item released by the publicity department of appellant dated September 7, 1933, which contained the following statement: “ ‘We’re Not Dressing’ is an original story by Walton Hall Smith.” Appellee also offered in evidence a similar item dated December 13, 1933, which stated in part:

“Francis Martin * * * today was assigned to write the screen adaptation of ‘We’re Not Dressing’ to be produced soon S{í Jjí 5ji

“Others working on the story, an original by Walton Hall Smith called ‘A Cruise to Nowhere,’ are * * *”

Objection was made to both items on grounds identical with those urged against the admission of the production cost sheet, and counsel also stated: “ * * * There is no foundation whereby the corporation may be bound, because, in order for the evidentiary matter to be an admission properly received as such, it must be made by one within the scope of his authority, and it must pertain to authority which he has.”

The objections were overruled.

The trial court gave the following instruction to the jury: “Now, gentlemen, upon the evidence that the court has discussed a moment or so ago, upon the testimony as to earnings and the testimony as to failure on the part of the plaintiff to minimize the damages, there is an experience table of mortality that is applicable, and that may be used because in cases of this kind it is necessary to utilize the instruments that are possible or capable of utilization. One of these is that the experience table of mortality may be used if the jury concludes that it is proper to use it in the particular' case; and under the American Experience Table of Mortality the expectant age of the defendant, under the stipulation that he is now 37 years of age, is 30.35 years. So that if you reach this question of damages you have the right to consider that together with all of the other elements that have been included in all of the instructions that have been heretofore given or that will be hereafter given in this case.”

Upon the issues, the jury found in favor of appellee in the sum of $7,500. Judgment was entered on the verdict, from which judgment this appeal was taken.

Appellant contends that it was incumbent on appellee to prove that the accounting department and the publicity department were authorized to determine whether or not the picture produced was based upon or adapted from appellee’s story. Appellant urges that, “in order to be binding upon the principal, admissions must be made by an agent while acting within the scope of his authority and must relate to matters to which that authority extends.” Ferguson v. Basin Consolidated Mines, 152 Cal. 712, 713, 93 P. 867; Peterson Bros. v. Mineral King Fruit Co., 140 Cal. 624, 630, 74 P. 162; Birch v. Hale, 99 Cal. 299, 33 P. 1088; Beasley v. S. J. Fruit-Packing Co., 92 Cal. 388, 392, 28 P. 485. The same rule is applicable with respect to admissions of an officer of the corporation. Beasley v. S. J. Fruit-Packing Co., supra, 92 Cal. 388, 392, 28 P. 485. None of these cases is strictly in point. In each of them the person who made the admission was identified before the evidence was offered, or, in other words, it was known who made the admission. Here it is not denied that the admission was in fact made by some one for the corporation, but it did not appear who made the statement.

At the time the cost sheet was. offered, there was no evidence as to the origin of the sheet, nor its content. There was proof that it was taken from the files of appellant, and produced by it. There was no proof, at the time it was offered, that it was made by or on behalf of any department. So far as the record shows, it might have been made by or on behalf of the board of directors, or by or on behalf of the production department, which appellant admits had authority to make such an admission. In other words, at the time the cost sheet was offered, the proof showed it was made for the corporation. If one agent or officer made it, it would have been made within his authority; if another agent or officer made it, it would not have been made within his authority.

There seems to be good ground for an exception to the rule mentioned. For example, suppose a prospectus is issued by a large corporation, which contains simply the corporate name at the end thereof, and in which an ádmission is made. If the rule mentioned is extended, then the person offering the prospectus would have to first prove who made the prospectus, before he could prove such person’s authority. It is difficult to see how the party could prove such identity, short of questioning each officer, agent, and employee. Many corporations employ thousands of people. Such a rule would be impractical. Logic would compel admission as evidence of the admission so made, and, if the identity of the person who made the admission is thereafter proven, then the authority of the person should he proven, or the admission, on motion, stricken.

However, assuming without deciding, that the rule relied upon by appellant is applicable here, then we believe the error did not affect the substantial rights of appellant. 28 U.S.C.A. § 391.

Appellant also contends that the cost sheet had no evidentiary value because the later evidence showed “that it was the practice of the accounting department to charge a story to -a production when it had been bought for it, or for a specified star, whether the story was actually used or not. '* * * ” In the first place, this contention relates to the weight of the evidence and not to the admissibility thereof. In the second place, when such fact was proven, there was no renewal of the objection or a motion to strike. Therefore, no ruling of the trial court exists for review.

With respect to the publicity items it should be noted that both of them were issued before filming, and before the screen adaptation was written. We believe the error, if any, was cured by the repeated instructions of the trial court that the finished picture must have been based upon or adapted from appellee’s story, since it was apparent to the jury that appellant may have changed its program. If the error was not cured, then it did not affect appellant’s substantial rights. 28 U.S.C.A. § 391.

Appellant specified the admission of certain other evidence as error, in specifications numbered 7 to 13, both inclusive. With respect to these appellant says in its brief: “We have no desire unduly to prolong this brief and hence the matters dealing with asserted error in the admission of evidence * * * detailed in [the specifications mentioned] will be submitted without argument.” Under such circumstances, error is not shown, and we treat these specifications as abandoned.'

With reference to the instruction hereinabove set forth, appellant says that mortality tables are inadmissible as evidence in such a case as this, and relies on Johnson v. Richards, 50 Idaho, 150, 294 P. 507, Snyder v. Great Northern Ry. Co., 88 Wash. 49, 152 P. 703, and Swope v. City of Seattle, 36 Wash. 113, 78 P. 607. Appellee contends that the instruction was proper on the authority of Turner v. Jackson, 139 Or. 539, 4 P.(2d) 925, 11 P.(2d) 1048. The California courts seem not to have passed on the question.

We believe the error, if any, did not affect the substantial rights of the parties, but was a technical error. 28 U.S.C.A. § 391. The mortality table was not introduced into' evidence. The court, j udicially noting the table, simply instructed the jury to consider it with all the other evidence “if the jury concludes that it is proper to use it in the particular case.”

Appellant says that the primary question is whether or not the picture was based upon or adapted from appellee’s story. That statement is only partially true. Our function is to ascertain whether or not there is any substantial evidence to Sustain the verdict. Specifically, the question presented is whether or not there is any substantial evidence to sustain the finding of the jury that the picture “We’re Not Dressing” was based upon or adapted from appellee’s story, “Cruise to Nowhere.”

An examination of the record discloses that the evidence was conflicting. Three of appellant’s witnesses defined and distinguished between “based upon” and “adapted from.” There was evidence showing that the picture produced was not based upon or adapted from appellee’s story. We are not interested in such evidence, however, but only in the evidence of the opposite fact."

The cost sheet hereinabove discussed is some evidence of the fact found by the jury. Correspondence between officers of appellant had some months before filming was started indicates that appellant may have used the story. Appellee introduced a manuscript of his story into evidence, and read it to the jury. During the trial, the court and its attendants, the jury, appellee, and counsel for the parties saw a showing of the picture. The jury was able to make a comparison. Afterward, appellee testified, “I saw in the picture much of the plot which I originally had in mind; much of the basic idea.” We believe this is sufficient to warrant submission of the issue to the jury, and, since the jury believed it, the verdict is supported thereby.

Finally, appellant urges that there is a lack of evidence to support the award of damages, in that there was no standard by which damages could be gauged. Appellee contends that the true rule on uncertainty of damages is that the prohibition is directed against uncertainty as to cause, rather than uncertainty as to measure or extent.

We do not believe the evidence is subject to the charge of uncertainty. Appellee testified that he and another writer collaborated in writing a story and sold it without screen credit for $10,000, which the two writers divided. Appellee’s story was sold for $2,500, but under a contract that required that he be given screen credit. From these figures, the jury might easily compute the advertising value of the screen credit. He also testified that he received screen credit for a play; that prior thereto his salary was $250 per week; and that afterward he received $350 per week at one time, and $500 per week for a period of two weeks, due to the screen credit he had received. That evidence is, if believed, likewise sufficient as a gauge for the measure of the damages.

Finding no error affecting the substantial rights of appellant, the judgment is affirmed.