Fairfield v. American Photocopy Equipment Co.

SHINN, P. J.

This is the second appeal in an action for an injunction and for compensatory and punitive damages, occasioned by defendant’s unauthorized use of plaintiff’s name in advertising its product. Defendant had judgment of non-suit upon the first trial. That judgment was reversed by this court.

(Fairfield

v.

American Photocopy etc. Co.,

138 Cal. App.2d 82 [291 P.2d 194].) Retrial was to the court, which made findings and entered judgment for plaintiff in the sum of $3,100, consisting of $1,500 compensatory damages and $1,600 punitive damages. The court also granted a permanent injunction against the use of plaintiff's name in the conduct of defendant’s business. Defendant made a motion for new trial, which was ordered granted unless plaintiff agreed to

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remit the $1,600 punitive damages and ordered denied if plaintiff filed the remission. Plaintiff filed a remission of the judgment in that amount. He appeals from the order requiring him to remit the punitive damages; defendant appeals from the judgment for compensatory damages.

Plaintiff is an attorney at law. Defendant is an Illinois corporation doing business in California; it manufactures and sells a photocopy machine known as the “Apeco Systematic Auto-Stat.” Plaintiff was the only witness. Defendant offered no evidence. From the testimony of plaintiff, which was spread out exceedingly thin over 100 pages of direct and cross-examination, we glean the following facts: Plaintiff is licensed to practice law in New York and California. He has lived in the latter state since 1946. He has a wife and two children. His wife is an attorney at law and her professional name is Ethelyn Black. They maintain offices in Beverly Hills. In the summer of 1953, plaintiff bought a photostat machine from defendant which he found unsatisfactory

;

after considerable correspondence he returned it a month later and received a refund of his money.

In July 1954, an attorney named Lieberman called plaintiff’s attention to a circular issued by defendant advertising the machine. It listed “Joe W. Fairfield, Los Angeles” with a list of 17 others as among “thousands of leading law firms using the Apeco Auto-Stat.” No one else was listed from Los Angeles and none from Beverly Hills. Plaintiff had not authorized the use of his name. Lieberman made it clear that he suspected that plaintiff had received money for the use of his name, which plaintiff denied. A man who said he was a lawyer called by phone to inquire about the machine. A female lawyer called him to inquire about the machine and when told of plaintiff’s experience with it, expressed doubt that the company would have listed plaintiff’s name unless he was a satisfied user. She talked for several minutes and plaintiff was “getting a bad time” explaining to her. Another attorney who read the circular called him. Plaintiff had “a bad time with him.” An attorney named April, whom plaintiff knew quite well, asked him pointblank how much he would ask to endorse a “dog product.” Other attorneys, Harvey Silvert, Bentley Ryan and Sidney Traxler, asked him about the machine and plaintiff stated “Well, they wanted to know where I am earning more money by endorsing products than I am from the practice of law '. . . and whether I found it profitable or lucrative.” Plaintiff claimed that this good