James v. Screen Gems, Inc.

[651]

WOOD (Parker), J.

Plaintiff appeals from a judgment of dismissal based upon an order sustaining a demurrer to an amended complaint and upon the failure of plaintiff to amend within the time allowed for amending.

There are two purported causes of action in the amended complaint. The allegations of the first cause of action are, in substance, as follows: Defendant Screen Gems produced a film entitled “Bitter Heritage” which allegedly portrays a segment of the life of Jesse James, Jr., son of Jesse James, the notorious outlaw and guerrilla fighter who lived from 1847 to 1882. Plaintiff was the wife of Jesse James, Jr. She lived with him as his wife for more than 50 years and is his widow. Defendant Columbia Broadcasting System advertised the film indicating to the public that the film would be exhibited on said defendant’s “Playhouse 90” production for nationwide television viewing on April 17, 1958, and said defendant caused certain previews of said film to be shown on its “Playhouse 90” production on April 10, 1958. Plaintiff viewed the previews on April 10, 1958, and on April 11 viewed the entire film. All people, places, and events portrayed in said film are pure fiction with the exception that Jesse James, Jr., and Frank James, brother of Jesse James, were real persons, and that Jesse and Frank James had a mother living during the time of the alleged incidents of the film, and that the town of Jearney (Kearney) is a real town located in Missouri. Defendant Screen Gems produced the aforesaid film consisting of false statements and incidents concerning the life of plaintiff’s deceased husband, to wit: that Jesse James, Jr., was portrayed “as being (1) a sideshow attraction in a carnival while he was a child (2) an outcast from his hometown of Kearney, Missouri, for a period of 15 years (3) one who was implicated in a bank robbery (4) one who was portrayed as taking the law into his own hands by carrying and bearing firearms for the purpose of defending his honor, which was contrary to the laws of the State of Missouri during the period of time portrayed in said film.” The portrayal of said false statements and incidents about plaintiff’s deceased husband was made with the intent that the public, by nationwide television, would be misled into false belief as to the activities and character of plaintiff’s deceased husband, and was made for the exploitation of plaintiff’s deceased husband’s personality and name for commercial purposes. On April 17,1958, in disregard of plaintiff’s wishes