Rehearing Denied Jan. 12, 1937.
Error to District Court, City and County of Denver; Frank McDonough, Sr., Judge.
Action by Dorothy McCreery against the Miller's Grocerteria Company and others. Judgment for the defendants, and the plaintiff brings error.
BOUCK, YOUNG, and HOLLAND, JJ., dissenting.
[99 Colo. 500]John E. Fitzpatrick, L. E. F. Talkington, and Charles H. Haines, all of Denver, for plaintiff in error.
Karl C. Brauns, Quiat & Cummings, Ira L. Quiat, and Ralph J. Cummings, all of Denver, for defendants in error.
Dorothy McCreery sought an injunction and damages against Miller's Grocerteria Company, the E. B. Millar Coffee Company, and Orva F. Ware. The defendants filed general demurrers to the complaint. The court sustained the demurrers and dismissed the suit. To reverse the judgment, the plaintiff sued out a writ of error.
The allegations of the complaint are substantially as follows: Plaintiff employed Ware, a photographer, to take, prepare, and finish four photographs of plaintiff. He did the work and plaintiff paid the price. Later she procured two additional photographs. Thereafter plaintiff discovered that Ware had exposed a copy of her photograph to public view in his showcase. She purchased that copy, advising Ware that she was purchasing it for the reason that she did not desire that her photograph should be exposed to the public, and at the same time she refused Ware's request for permission to use her photograph for display or advertising purposes. Subsequent thereto Ware entered into a contract with his codefendants, the Grocerteria Company and the Coffee Company, 'to expose plaintiff's photograph in public places to the humiliation, embarrassment, distress and damage of this plaintiff and without the consent and against the wishes of this plaintiff.' The Grocerteria Company operates five stores in Denver and one in Englewood. Both the Grocerteria Company and the Coffee Company displayed plaintiff's photograph in said stores, with the consent, connivance, and co-operation of Ware, but against plaintiff's [99 Colo. 501] wishes and without her consent, to plaintiff's humiliation, embarrassment, distress, and damage. The photograph was displayed for advertising purposes in conjunction with a sign reading substantially as follows:
'$4.50 Credit Certificate for $5.00 Beautiful Photograph, Like Sample Shown, of Yourself or Member of Your Family with the Purchase of Two Pounds of Millar's Universal Coffee.
'The said defendants and each and every one of them did conspire, connive and arrange to injure plaintiff's feelings and embarrass plaintiff and did by the display of said photograph injure plaintiff's feelings and embarrass and distress said plaintiff and did hold plaintiff up to the ridicule and scorn of her friends and acquaintances, all of which has caused plaintiff great humiliation, distress, mental anguish and damage and has caused plaintiff to be highly nervous and distressed, thereby seriously and irreparably injuring plaintiff's health and well-being and has prevented plaintiff from attending to her regular duties and carrying on her usual work, all to the damage of this plaintiff in the amount of One Hundred Thousand Dollars ($100,000.00).'
Plaintiff alleges that unless defendants are restrained by the court, they will continue to display her photograph at said stores to her irreparable injury. She asks damages and an injunction.
The demurrers are general on the assigned ground that the complaint does not state facts sufficient to constitute a cause of action. A demurrer on that ground presents only one question, namely, 'Does the law, assuming the facts to be true as stated, give the plaintiff any right to demand anything of the defendant; or, conversely, do the facts cast on the defendant any legal duty toward the plaintiff?' Denison, Code Pleading, § 198. 'Such a demurrer cannot be sustained to ...