*1 Company pos- had a Phillips Petroleum that n land, we con- nor need sible interest existed. possibility or not that
sider whether guar- Mr. Cox warranty given deed property quiet possession
anteed provisions of the stat- Ney. By Mr. forth, when Mr. if and last above set
ute property interests in the
Cox secured which was warranty his deed
conveyed delivery of
outstanding at the time of deed, immediately such interest would
pass Ney, grantee. to Mr. court is re- judgment of the trial his appellant is awarded
versed and
costs.
CROCKETT, WILKINS, MAUGHAN JJ., HALL, Jr.,
Gaylen Young, S. City, Salt Lake for plaintiffs and appellants. Christensen, Ray R. City, Salt Lake defendant and Bruce and Jean W. C. JEPPSON wife, Jeppson, his Plaintiffs and WILKINS, Justice:
Appellants, Plaintiffs appeal from an order of the County, granting District Salt Lake TELEVISION, INC., UNITED aka KTVX defendant’s motion to dismiss T.V. Channel Defendant and failure to state a claim for for. Respondent. which All statuto- granted. relief could be Annotated, ry references are to Utah Code that May defendant, as a employee “Dialing for program of the television Dollars,” resi- telephoned plaintiffs at their 11, 1977, the fol- dence on March and had W. lowing conversation with Plaintiff Jean Jeppson: Dollars,” you do “Dialing He: This is your have set on? T.V. No, I don’t.
She: unfortunate, Oh, He: you have won $50.00. could you, tell I’d rather Well now I’ll She: home than all peace my have television, even for garbage $50.00. *2 1088 knowledge Jeppson, of Mrs. If
Without the violation. in the action the court finds the Jepp- defendant’s had announced the violating defendant is or has violated air, on the son name and any provisions part, of this it shall without and televised the conversation ad- enjoin the defendant from a continuance vising Jeppson, obtaining and without thereof. It shall not be necessary that Immediately her consent. after this con- actual damages to the plaintiffs be al- versation, continuing and all of the remain- leged proved, or but if are al- afternoon, plaintiffs allege they der of the leged proved, and plaintiff the people received calls from all the state over action shall be entitled to recover from Utah, conversation, of who referred to this the defendant the damages, actual any, if rude, abusive, and used obscene and threat- injunctive sustained in addition to relief. ening language, plain- all of which caused A finding that the defendant is in viola- embarrassed, humiliated, tiffs to be part tion of this shall entitle the safety to fear for their being. and well attorney’s fees. Exemplary pray
Plaintiffs relief three sepa- on damages may be awarded where the vio- (1) rate theories: invasion of common law lation is found to be malicious. privacy, (2) plaintiffs’ of abuse of In the case of Donahue v. Warner Bros. personal provi- the identity in violation of Pictures Distributing Corp., 76-9-405, (3) sions of Section intention- (1954), P.2d 177 this Court construed al infliction of emotional and and malicious predecessor statute to section 76-9-405 mental harm. in considering whether the showing in the allegations contained in State of Utah of picture a motion based complaint a claim which relief state partially on the life of Jack gave Donahue any one of these theo- may be rise to a claim for relief in favor of his heirs the District ries Order of Court dismiss- on the theory that picture said motion was must be reversed. shown “for of In that trade”.1 76-9-406, respec- Section 76-9-405 and case, this rejected Court the contention that tively, provide: proscribed statute the publication of a (1) person guilty A is per- of abuse of picture name or in all cases profit when a if, identity sonal of ad- motive present, is and held that the statute vertising any articles of merchandise for proscribes only such use “for advertising or purposes of trade or for any other adver- exploitation of the picture name or or for name, tising purposes, pic- he uses promotion of the sale of some collateral ture, portrait any or individual or uses commodity ...” picture any public the name or institu- changed statute was in 1973and now state, tion of any this the official title of clearly adopted by contains the limitation state, officer of any this Court in Donahue. person who living, without first having per- obtained the written consent of the
son, minor, or if person program, “Dialing be a defendant’s for Dollars” written consent parent guardian, presented of his or solely the purposes of ad- dead, or person if the station, without writ- vertising its television and increas- ten personal repre- consent of his heirs or ing the viewers of its They sentatives. maintain that publication defendant’s
Any their person, or the heirs of de- name and number without person, injured by ceased who has been and consent for the purposes of may bring an action of this such advertising is within proscription against person who committed the agree. statute. We repealed provided poses trade, card, Section in in upon any postal or ” “Any present language: person name, portrait contrast to the who uses for picture any person advertising purposes pur- or for ruling on defend- The District CROCKETT, Justice (dissenting). dismiss, evidently found ant’s motion to In addition to the observations made in plaintiffs rights had waived their dissent Ellett, that the people had invited to call their plaintiff’s name was not actually used to by having residence their name and number advertise or in connection with product *3 viola- The published service, in the book. I think the following observa- tions statute, however, pertinent. are also tion of the of the consists publication of the name on the air without It should be realized living in an plaintiffs’ prior written consent. Plaintiffs organized society imposes some obligations states a claim for which relief of consideration for pursuit others in the may interests, be under the statute. long as that does not unduly infringe upon our own. With each point As this is dispositive we do not enjoyed benefits to be there are some discuss remainder of conten- disadvantages With to be endured. the tel- tions. ephone it is common that every- Reversed and pro- remanded for further expects one get to some undesired calls: ceedings opinion. not inconsistent with this wrong numbers, solicitations, or calls which are for unwanted, Costs to other reasons plaintiffs. and which
are usually quickly and courteously dealt
with.
HALL, JJ.,
MAUGHAN and
By way
comparison,
and in deference
to
necessity
for reciprocal
ELLETT,
consideration
(dissenting).
others,
actions and interests of
program “Dialing
for Dollars” is a
recognizes that,
law
in the
ány
absence of
by
scheme used
encourage
defendant
to
warning
contrary,
to the
there is
implied
an
public
to watch its
Occasion-
permission to enter one’s property and
ally during
day
a number is selected at
knock at his door. A person may refuse to
random
phone
from the
book and if the
it,
may
permission
answer
or he
revoke the
person called is watching the show he will
by advising
presence
the knocker that his
paid
be
the amount of money shown in the
leave,
requesting
not desired and
him to
“kitty.”
request
comply.
with which
he must
There was no use made of the name of
By analogy,
allowing
her name and
“
Jeppson
Mrs.
.
.
phone
to be listed
advertising any articles of
book,
merchandise for
phone
deemed
plaintiff should be
to
purposes of
give
trade or for any
implied permission
other
to those who
advertis
desire
I
to call her number. She has the
. .”
think the case
Bros,
options
having
phone,
having
of not
a
of Donahue et a l. v. Warner
etc.2
number,
an unlisted
or she
refuse to
can
dispositive of the instant matter.
answer,
(as
reject any
or she can
call
she
Jeppson
received
phone calls
proved
quite capable
doing).
herself
But
they undoubtedly were prompted by her
number,
up
calling her
it is
point
own response to the call made to her. Her my judgment
there has been no tres-
phone number is listed in
phone
book.
her,
impermissible
pass against
nor
in-
If she is sensitive
receiving
about
it
calls
privacy.
vasion of her
would seem that she should have an unlist-
foregoing
fully justify
should
phone
ed
in her home.
complaint.
trial court’s dismissal of the
I would affirm the trial court and award But if the filament of reason is strained to
costs to the
breaking point,
beyond
what I
as
U.C.A.1953,
256,
(1954).
2d
larly summarily she could handle
onstrated that Nevertheless, calls.)
any unwanted I can which fair minded
see no foundation such
persons would conclude dam- inquiry the courteous
age was caused proffer favor the defendant. con- contrary: only
On
clusion is that if there was such dam-
age, it solely by would have been caused
plaintiff’s intemperate own outburst at the
courteously offered favor. supposition above,
In stated
if the defendant’s conduct constituted a right,
mere technical damage, no actual the estab-
but caused previously approved by
lished rule it will is that not reverse for nominal awarding
only.1 my opinion
It is that the trial court wise- judiciously ruled that
ly, properly and jury required
court and should not be time, trouble and attention nec-
devote with such a tenuous and
essary to deal
meritless claim. Co.,
1. Commonwealth Kennedy National Bank v. 298; 505 P.2d 66 C.J.S. New Trial §