Pendleton v. Time, Inc. ( 1949 )

Mr. Justice Feinberg

delivered the opinion of the court.

Plaintiff brought his action against defendant for damages. A motion to dismiss the complaint was sustained and the suit dismissed at plaintiff’s costs, from which plaintiff appeals.

The sufficiency of the complaint is the only question presented upon this appeal. We deem it necessary to set out the essential averments, wherein facts well pleaded were, for the purpose of the motion to dismiss, admitted to be true.

The complaint alleges:

“1. Larry Pendleton, the plaintiff, is an artist specializing in the painting of portraits.

“2. Defendant, Time Incorporated, is a corporation engaged among other things in the publication of a certain magazine known as ‘Life.’ Said magazine is published in the City of Chicago, State of Illinois.

“3. In the month of January, 1945, the plaintiff made, executed and completed a portrait of one Harry S. Truman, then Vice President of the United States of America. During the time plaintiff was painting said portrait of said Harry S. Truman said Harry S. Truman sat before plaintiff on several occasions to aid plaintiff in its execution.

“4. The said portrait was the first portrait for which the said Harry S. Truman had sat and at the time of its completion was the first and only portrait of the said Harry S. Truman then made.

“5. The said portrait was presented to Harry S. Truman. The said presentation and unveiling of said portrait took place in the City of Washington, D. C. on or about March 3, 1945, and was attended by many persons prominent in public life. The title to the portrait so made of and presented to the said Harry S. Truman passed to said Harry S. Truman but the plaintiff had and retained all rights to reproduce the same.

“6. By reason of the making of said portrait and its presentation to and acceptance by said Harry S. Truman great fame and acclaim as an artist came to and was had and enjoyed by plaintiff.

“7. By reason of the said execution and presentation of said portrait and the publicity attendant on the same plaintiff was consulted concerning the painting of the portraits of other prominent persons, and he negotiated concerning the doing of similar work for, of and concerning such persons.

“8. On or about April 12, 1945, the said Harry S. Truman became the President of the United States of America. Plaintiff then had and was possessed of the honor and distinction of having made and executed the only existing portrait of the President. The reputation of the plaintiff was thereby greatly enhanced, and the right of the plaintiff to reproduce the portrait of the President made and executed by him had a greatly enhanced value. Plaintiff at said time had entered into a contract with others granting to them the right to make and sell a large number of reproductions of said portrait, under which contract the plaintiff was to receive a royalty on each reproduction sold.

“9. At the time of the unveiling and presentation of said portrait and at all times since the defendant knew and has known of said portrait and that the same had been made and executed by the plaintiff.

“10. The defendant,, as aforesaid, is the publisher of the magazine ‘Life.’ In said magazine are published and publicized in pictures and by means of printed words, among other things, contemporary events of general or peculiar interest.

“11. The plaintiff at said time was also endeavoring to sell the right to reproduce said portrait to a magazine of large national circulation. It was proposed that the said portrait and the painting thereof were to be featured in said magazine. It was also proposed that copies of reproductions of said portrait be sold by the publisher of said magazine. Time Incorporated, defendant herein, was one of the publishers to whom was submitted in the month of April 1945 the foregoing proposal concerning the purchasing by it of the said rights for its magazine known as ‘Life.’ The offer to defendant was not consummated, the plaintiff and defendant having failed to agree upon a price to be paid by defendant for the right to reproduce said portrait and to publish its accompanying article in said magazine ‘Life.’

“12. After the said negotiations for the purchase by the said defendant of the right to reproduce said portrait of said Harry S. Truman had ended and with knowledge in the defendant of the completion and execution of said portrait by plaintiff and its existence as aforesaid, the said defendant despite said negotiations and the said knowledge did in the issue of the magazine ‘Life’ for the 26th day of November, 1945, upon page 59 thereof, publish the reproduction of a portrait of the said Harry S. Truman, President of the United States which was other than that made and executed by plaintiff above referred to and was made and executed by one Jay Wesley Jacobs; As a caption to the printed matter accompanying said portrait were the words ‘Truman Painting.’ As a sub-caption to said printed matter were the words ‘President sits for first portrait and considers result flattering. ’ The article following said captions was as follows:

“ ‘During all his years in public life Harry Truman never bothered to have his portrait painted. Recently, however, as President, he sat for Artist Jay Wesley Jacobs. The result, Truman’s first portrait, is shown here.

“ ‘The oil painting, academic and realistic, is life-size and was done in the Cabinet Room of the White House. On Truman’s right is the American flag, on his left the presidential flag. In his buttonhole is a discharge button from the Army after World War I. Truman himself likes the portrait, especially the eyes, but thinks it is too flattering. Mrs. Truman says she is crazy about it because it looks just like him.

“ ‘The President did not commission the portrait. It is being paid for by an old friend and it was planned to give the finished painting to members of the Senate where Truman has always had a lot of friends and where, now, he needs friends more than ever.’

“13. The statements made by the defendant in the article accompanying the reproduction of the portrait of said Harry S. Truman were false in that the said portrait is not the first portrait made of said Harry S. Truman and the portrait made by plaintiff was the first portrait made of said Harry S. Truman. The falsity of said statements was known to the defendant at the time the said article was published. The defendant notwithstanding said knowledge of said falsity, knowingly and maliciously published said article and made said statements with intent to injure the plaintiff and to detract from and destroy his reputation as an artist.

“14. As a direct consequence of the publication of said false statements in said article published November 26, 1945, by the defendant in said magazine ‘Life’ the defendant lost all benefit and advantage accruing to him by reason of his having made and executed the first portrait of said Harry S. Truman. The plaintiff was further made to appear as stating an untruth in his prior statements of and concerning his having made the first portrait of the said Harry S. Truman. The rights of reproduction of the portrait of said Harry 8. Truman had and possessed by plaintiff and the sale of which reproduction was to be publicised as a sale of the first portrait made of the said Harry 8. Truman was lessened and rendered of little or no value. The plaintiff by reason of said publication by defendant of said false statements has further lost the commission to do portraits of other prominent persons and has been otherwise greatly damaged in his person and reputation.

“15. The plaintiff as a direct and proximate consequence of the acts of the defendant as above set forth has been damaged in the sum of One Hundred Thousand Dollars ($100,000.00).

“Wherefore plaintiff asks judgment in the sum of One Hundred Thousand Dollars ($100,000.00) and costs of suit.” (Italics ours.)

It will be observed that the complaint alleges the defendant, notwithstanding the knowledge of the falsity of its published caption, knowingly and maliciously published said article and made such statements “with intent to injure the plaintiff and to detract from and destroy his reputation as an artist.” It is specifically further alleged that as a direct consequence of the publication of said false statements in said article, plaintiff lost all benefit and advantage accruing to him by reason of his having made and executed the first portrait of Harry S. Truman; that plaintiff was further made to appear as stating an untruth in his prior statements concerning his having made the first portrait of Harry S. Truman; that his reproduction and sale rights of the portrait made by plaintiff were lost and rendered of little or no value; and that plaintiff lost the commissions to do portraits of other prominent persons and was otherwise greatly damaged.

We find in the allegations of this complaint a definite statement of a property right in the value attained in the painting of the “first” portrait of Harry S. Truman, the loss of potential income from reproduction and sale rights of this portrait, as well as the loss of earnings from commissions to do portraits of other prominent persons. When, as alleged in the complaint, this injury to plaintiff’s property right was wilfully, maliciously and intentionally committed by defendant, there must be a remedy afforded for this wrong to the plaintiff.

We think the applicable principle of law was clearly stated in Doremus v. Hennessy, 176 Ill. 608, 615. It was there said:

‘1 Every man has a right, under the law, as between himself and others, to full freedom in disposing of his own labor or capital according to his own will, and any one who invades that right without lawful cause or justification commits a legal wrong, and, if followed by an injury caused in consequence thereof, the one whose right is thus invaded has a legal ground of action for such wrong. Damage inflicted by . . . misrepresentation, . . . with malicious motives, is without excuse, and actionable. . . . An intent to do a wrongful harm and injury is unlawful, and if a wrongful act is done to the detriment of the right of another it is malicious, and an act maliciously done, with the intent and purpose of injuring another, is not lawful competition. ’ ’

See also Dunshee v. Standard Oil Co., 152 Iowa 618, and Tuttle v. Buck, 107 Minn. 145.

The facts and principle announced in Advance Music Corp. v. American Tobacco Co., 51 N. Y. S. (2d) 692, 693, affirmed 296 N. Y. 79, are analogous and peculiarly applicable to the instant case. The reasoning in that case is persuasive. It was there said:

“In short, defendants, not casually or inadvertently, but deliberately and as a regular course of business and for their own personal gain, make statements and do acts which are untrue and deceptive and which are disparaging to plaintiff’s property, and the nature of such representations and acts and the circumstances under which they are made and performed are such as to lead defendants to foresee that the conduct of third persons might be determined thereby; and such representations and acts are of such nature as to be likely to cause and, in fact, have caused damage to the plaintiff.” (Italics ours.)

The instant action is not to be confounded with ordinary libel actions involved in cases cited by defendant in support of its position, where it was uniformly held that unless the words are actionable per se, special damage must be alleged. Even if it were necessary to allege special damage in the instant case, we regard the allegations of the instant complaint as sufficiently alleging special damage.

We must hold the trial court erred in sustaining the motion to strike the complaint, and dismissing the action. The judgment of the superior court is reversed and the cause remanded with directions to overrule the motion to strike and to direct an answer to the complaint.

Reversed and remanded with directions.

Tuohy, P. J., concurs.