194 A.D. 688 | N.Y. App. Div. | 1921
Plaintiff, -ought this action to recover damages for the use of her najriw md portrait for advertising and purposes of trade without (her consent, contrary to the provisions of the Civil Rights /Law (§§ 50, 51, as amd. by Laws of 1911, chap. 226). /The principal contested question of fact was whether the plaintiff had -given her consent to the publication of her name/ and portrait. The court instructed the jury that if they{found that the defendants had so used the name and portrait of the plaintiff, knowing that she had not given heij consent thereto, either orally or in writing, they might include in their verdict exemplary damages in addition to compensatory damages; if they found that the name and picture wrere used without the written consent of the plaintiff they slaould give her such sum as they thought would be a just and flair compensation for her injured feelings, and their verdict
The jury, therefore, accepted the testimony of defendants’ witness that the plaintiff had given her oral consent to this use of her name and portrait by the defendant, The H. W. Gossard Company, Inc.
The plaintiff was a well-known actress, whose name and portrait had frequently been published, and no objection had ever been raised by her on account of these publications; in fact, she admitted that they helped her in her profession and that\she was not averse to the publicity which these publications bnsnight, provided it was in connection with her profession. Talcing these'fasts into consideration, we cannot say that “ the damages are insufficient, contrary to the evidence and the weight thereof, and otherwise.contrary to law,” which were the only grounds specified by plaintiff’s attorney in the motion made on the minutes for a new trial. Decision was reserved. The case of the same plaintiff against The Vocj-ue Company and another was then tried before the same court anal, resulted in a verdict for plaintiff for six cents damages. A sihtilar motion to set aside that verdict and for a new trial was' nis^de, and decision reserved. Some months thereafter the justice^ handed down his opinion in the Vogue case, in which he states that the plaintiff’s counsel earnestly urges that new trials \be granted in the discretion of the court, basing his argument in that regard upon the zeal of defendants’ counsel, who, in Ms effort for victory, produced an atmosphere throughout bom trials which could not have failed to have a most baneful influence upon the jury. He summarizes these matters: \
1. That photographs published as an aid to the plaintiff in her professional career were received in evidence. Some of these were published with and some without her knowledge and consent. None were for trade purposes. Defendants’ counsel undertook to prove that among prominent actresses a custom existed to permit their names and photographs to me used in connection with trade advertisements without compensation. After the first ruling on the subject and exceptúan noted, he persisted in repeating the question to successive^ witnesses.
3. Alter plaintiff had consented during the trial to have a flashlight photograph of herself taken by a newspaper photographer, defendants’ counsel availed himself of the incident and offered in evidence a newspaper containing plaintiff’s portrait, which later was shown to be a reproduction of an old picture of plaintiff and not one of those taken by flashlight.
The only objections that were taken at the trial were that the evidence was immaterial and irrelevant. Plaintiff’s counsel made no protest or charge of improper conduct during the trial, nor did he call the court’s attention to any act of alleged misconduct, nor did he make any request that the jury be instructed to disregard the matters of which he now complains. If he desired to raise those questions he should have laid the foundation by proper objection or motion, and exception. He did not ask to withdraw a juror. He thus sat by, taking the chances of a favorable verdict, and when disappointed in this expectation he cannot be heard to urge such objections on a motion to set aside the verdict. (Mulcahy & Gibson, Inc., v. Nat. Surety Co., 167 App. Div. 651; Dimon v. N. Y. C. & H. R. R. R. Co., 173 N. Y. 356.) A careful reading of the record does not disclose such misconduct on the part of the defendants’ counsel as to justify the action of the trial justice as a matter of discretion. The incident of the exhibition of the photographic supplements of newspapers and advertising pages of magazines within view of the jury was for the purpose of offering them in evidence. If there was any impropriety in the method of their presentation, an admonition of the justice to counsel when the first was so presented and proper instruction to the jury would have corrected any error and prevented its repetition. If then persisted in, a mistrial might properly have been ordered. Persistence in presenting evidence similar to that excluded may be highly improper, but if no objection is made either by adverse counsel or by the court, counsel may assume that he may rightfully present such evidence as he deems material and obtain the benefit of an exception to its exclusion.
The order should be reversed, with costs, and .the verdict reinstated.
Clarke, P. J., Dowling, Smith and Greenbaum, JJ., concur.
Order reversed, with costs, and verdict reinstated.