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standpoint of the individual injured.' The difficulty arises in determining which interest is involved in a given set of facts.
Moreover, it would seem that these two rights are exclusive. The use of one's name or picture as property from necessity presupposes publicity to lend it pecuniary value. Again, the very essence of reputation is publicity, so if one's name acquires value through reputation, the interest in privacy is sacrificed. One cannot use his name publicly to any considerable extent and keep it private at the same time. Conversely, if the interest in privacy as such is infringed, no property right in the name or picture can exist. No doubt the unauthorized use by another, although infringing an interest of substance, may cause mental anguish as well as pecuniary loss, as where a reputable physician uses his name on a bottle of medicine and another steals it for advertising some quack remedy. Yet the right violated is still a property right. Reparation for the added mental suffering may be made by giving parasitic damages, 10 but, strictly speaking, no interest in privacy is infringed. The public use of the name refutes any such interest.
In the principal case, the actress treated her picture as property. She consented to its use for a public purpose, and thereby waived any interest in privacy. Consequently, no right of privacy under the statute was involved. But the court should have protected the assignment as a right of property."
RECOVERY FOR Goods SOLD BY AN ILLEGAL COMBINATION. Once more the United States Supreme Court has had presented to it the question whether a combination violating the Sherman Anti-Trust Act may recover for goods sold on a contract legal in itself but a part of a scheme to perpetuate the monopoly. Wilder Manufacturing Co. v. Corn Products Refining Co., 236 U. S. 165. The defendant alleged that the plaintiff, an illegal combination, in order to continue its monopoly, had perfected a profit-sharing scheme, which punished the failure to deal with the plaintiff exclusively in any given year by the forfeiture of a rebate on previous purchases. It was also alleged that every contract provided that the goods were not for resale. The court held that these allegations constituted no defense.
Since persons are not ousted from law courts merely because they are law breakers, it is now clear that the mere fact that the plaintiff is a monopoly does not bar its recovery. On the other hand, if the very contract in suit is illegal it plainly cannot be enforced. The situation in the principal case falls between these two elementary propositions. The contract was intrinsically legal;3 but when taken together with other contracts, it did no doubt tend to further the continued existence of the monopoly. This relation the court refused to consider. Substantially the same facts have come before the Supreme Court twice before. In the first case, however, the court managed to find no tendency in the contract sued on to perpetuate the monopoly. But in the second, where the connection between the contract and the illegal combination was perhaps more clear, a divided court recognized it and decided for the defendant. In material facts it is difficult to distinguish this case from the principal case,o and it is therefore overruled in substance, or at least limited to its very facts in that the contract there sued on might possibly have been of itself illegal.?
9 This is well illustrated in the case of Ellis v. Hurst, 66 N. Y. Misc. 235, 121 N. Y. Supp. 438. The plaintiff, well known as an author under a nom de plume which he always assumed, sought an injunction to restrain the defendant from surreptitiously using his true name in connection with an unauthorized publication of the plaintiff's works. No objection was made to the publication of the books themselves. The court rightly granted relief under the New York statute as a violation of the right of privacy. Clearly an interest of personality was alone infringed. But had the plaintiff written under his true name, its unauthorized use would have violated a property right similar in nature to his right in the books themselves.
10 Cf. 27 Harv. L. Rev. 87.
11 The New York statutory right of privacy would seem broader than the commonlaw right. If the actress had not consented to the use of her picture by the defendant, on the wording of the statute she still had a cause of action against him for using her name for advertising purposes without her written consent, although her interest in privacy was gone.
As a matter of contract law, it is a question of some difficulty to determine whether a contract intrinsically legal is tainted with illegality because it is part of a monopolistic scheme. It is obvious that these unoffending contracts, sufficiently duplicated, may be the very foundation of monopoly. This is recognized when the public attacks a combination directly, and although in a private suit on the separate contract the public interest is not quite so closely affected, yet the weight of authority here also considers it unenforceable because of its unlawful tendency.'
The only justification, therefore, for the result in the principal case must be that the Anti-Trust Law cuts off all search into the illegality of monopolies other than by the methods it prescribes. Such a doctrine would be highly desirable. It would relieve plaintiffs of the troublesome necessity of establishing their innocence to the satisfaction of any and every court which chanced to have jurisdiction, and leave the conclusive decision of important and complicated “trust" questions once and for all to the federal courts.10 The Act provides three remedies: dissolution or a criminal prosecution by the government, a forfeiture of property, and an action for threefold damages by any person injured." The last does appear inconsistent with an intention to vest the exclusive right to deal with violations of the Act in the government. Yet here, too, jurisdiction is vested solely in the federal courts; 12 and although one conclusive determination as to the legality of a combination for all purposes is not provided for, at least neither state nor federal courts are affirmatively given jurisdiction to attack monopolies collaterally by refusing to enforce contracts furthering their purposes. The contention that the Act goes further and deprives the courts of the right of such collateral attack is powerfully supported by an analogy in the interpretation of the Act to Regulate Commerce.13 This, likewise, gives any person the right to sue for damages in any district or circuit court.14 And it further provides that all existing remedies are preserved, the provisions of the Act being “in addition to such remedies.” 15 Yet, in order to prevent interference with what the Supreme Court considered a fundamental policy of the Act, namely, the maintenance of a uniform standard of rates, it construed the Act as depriving courts of their undoubted former jurisdiction to pass upon the reasonableness of rates, unless and until they had been found unreasonable by the Interstate Commerce Commission.16 Such an interpretation of the Sherman Law, which also has no express provision on the matter, may seem strained. 17 But by means of it the courts are deprived of their otherwise undoubted right to refuse enforcement to contracts furthering illegal monopolies, and the desirable result of the principal case attained.18
1 Connolly v. Union Sewer Pipe Co., 184 U. S. 540. See 22 Harv. L. Rev. 435. ? Patterson o. Imperial Window Glass Co., 91 Kan. 201, 137 Pac. 955.
3 Fuller v. Hope, 163 Pa. St. 62, 29 Atl. 779; Matthews 0. Associated Press, 136 N. Y. 333, 32 N. E. 981. Perhaps such a contract would now be illegal. See CLAYTON ANTI-TRUST Act, $ 3 (approved Oct. 15, 1914).
4 Connolly v. Union Sewer Pipe Co., supra.
6 Continental Wall Paper Co. v. Voight & Sons Co., 212 U. S. 227; 22 Harv. L. REV. 435.
6 See International Harvester Co. v. Oliver, 192 Fed. 59, 66.
7 The court in the principal case distinguished the Continental Case on this ground. The dissenting justices in the Continental Case pointed out, however, that the contract was per se intrinsically legal.
8 See Swift & Co. v. United States, 196 U. S. 375, 396.
· Merchants' Ice & Cold Storage Co. v. Rohrman, 138 Ky. 530, 128 S. W. 599; Pacific Factor Co. v. Adler, 90 Cal. 110, 27 Pac. 36; Santa Clara Val. M. & L. Co. o. Hayes, 76 Cal. 387, 18 Pac. 391; Judd v. Harrington, 19 N. Y. Supp. 406; Brent o. Gay, 149 Ky. 615, 149 S. W. 915. Cf. Morris Run Coal Co. o. Barclay Coal Co., 68 Pa. 173, 186; Richardson v. Buhl, 77 Mich. 632, 43 N. W. 1102. See 22 Harv. L. Rev. 435. Contra, Trenton Potteries Co. v. Oliphant, 58 N. J. Eq. 507, 43 Atl. 723; CarterCrume Co. v. Peurrung, 86 Fed. 439. See also the dissenting opinion of Mr. Justice Holmes in Continental Wall Paper Co. v. Voight & Sons Co., supra.
EVIDENTIAL USE OF MATHEMATICALLY DETERMINED PROBABILITY. A recent case in New York instancing methods of criminal detection reminiscent of Sherlock Holmes 1 also exhibits what is apparently a new problem in the law of expert evidence. People v. Risley, 214 N. Y. 75,
10 See the majority opinion when the principal case was before the Georgia Court of Appeals. Wilder Manufacturing Co. v. Corn Products Refining Co., 11 Ga. App. 588, 599, 75 S. E. 918, 923.
11 26 U. S. Stat. AT LARGE, 209, $$ 4, 6, 7.
12. The recent amendment that the result of a government suit will be primâ facie evidence in a suit by a private party is also significant. TRADE COMMISSION Act of Oct. 15, 1914, $ 5.
24 U. S. STAT. AT LARGE, 379. 14 Ibid. $ 9. 15 Ibid. § 22. 16 Texas & Pac. Ry. v. Abilene Cotton Oil Co., 204 U. S. 426.
17 To be sure, in developing common-law principles the courts go slowly in order to avoid judicial legislation. See Holmes, J., in Stack v. New York, N. H. & H. R. Co., 177 Mass. 155, 158. But in applying a statute the courts may properly take stronger action in order to carry out the legislative intent. See Lord Haldane in Trim District School Board v. Kelley (1914) A. C. 667, 680. Cf. 28 Harv. L. Rev. 308, n. 12.
18 A logical application of the analogy would seem also to subject the individual's right to sue for threefold damages to the condition precedent of an adjudication of the illegality of the monopoly in a direct attack by the Attorney-General.
1 "A Case of Identity,” by Sir Arthur Conan Doyle.
108 N. E. 200. To show that a typewritten forgery had been done on the defendant's typewriter, experts on typewriters were called, who testified that certain peculiarities of the form and alignment of the type exhibited by the specimen in question corresponded exactly with peculiarities exhibited by writing from defendant's typewriter. An expert mathematician was next produced, who, in response to a hypothetical question ascribing certain ratios to the probable recurrence of any one defect, was allowed to testify that the probability of the coincidence of all these defects in another machine was one in four billion. The admission of the latter testimony was held to be reversible error on the narrow and doubtless unimpeachable ground that the assumed hypothesis was unwarranted by any evidence in the case, but the court indicated that such testimony is necessarily improper to establish a past event.5
An obvious, though unsound, objection to the admission of such evidence is that it is an opinion by a witness no more expert in the sort of phenomena under investigation - viz., typewriters — than the jury; or, as it is sometimes said, that it amounts to an usurpation of the jury's function. Undoubtedly it is the function of the jury to pass judgment on the facts and determine the weight of inferences to be drawn. Reasoning by witnesses is not allowed unless it is of a sort which the jury is not equally well qualified to do for itself. But it is fundamental that one possessing special skill or knowledge, not open to all, concerning the sort of phenomena under investigation, and whose opinion will therefore be of assistance, will be permitted to express an opinion as to the probability of an occurrence;7 and it seems equally in accord with the spirit of the opinion rule to allow the same sort of testimony by one who, although without special knowledge of facts, is skilled in a specialized method of treating facts, provided his method is of value in judicial investigation.
The only objection, if any, to the admission of expert evidence must therefore be that mathematically determined probability is of no use in judicial investigation. The probability of an event is not a quality of the event itself, but expresses a degree of uncertainty in our knowledge
? A statement of the case will be found in RECENT Cases, p. 708.
3 An instance of similar use of such evidence is found in State o. Freshwater, 30 Utah 442, 85 Pac. 447. See also Levy v. Rust, 49 Atl. 1017 (N. J.).
4 Similar testimony as to the chance of a given individual writing three signatures exactly alike was admitted in the celebrated Howland Will Case, an account of which will be found in 4 Am. L. REV. 625. The appeal was decided on other grounds and the correctness of this ruling not tested. See Robinson v. Mandell, 3 Cliff. (U. S.) 169.
5 Hogan, J.: “That rule (referring to expectancy tables) is used from necessity when the fact to be proved is the probability of the happening of a future event. It would not be allowed, for illustration, if the fact to be established were whether A had in fact died, to prove by the Carlisle table he should still be alive.” 214 N. Y. 75, 86, 108 N. E. 200, 203.
Seabury, J. (dissenting on other grounds): “... I should hesitate to cast a vote which would sanction the reception of such evidence as to past transactions." 214 N. Y. 75, 96, 108 N. E. 200, 206. 6 For a criticism of this phrase see 3 WIGMORE, EVIDENCE, § 1920.
See 3 WIGMORE, EVIDENCE, S 1976. & See 3 WIGMORE, EVIDENCE, S 1923, where it is said: “But the only true criterion is: On this subject can a jury from this person receive appreciable help.”
concerning it. All events are certain in nature. Probability is thus an expression of the effect of more or less evidence in giving rise to belief. The use of the term in mathematical science is not different from its use in the affairs of everyday life, except that in everyday life probability takes into account evidence of all kinds, whereas mathematical probability can deal only with the convincing effect of a very limited kind of evidence. Probability is determined mathematically by taking the ratio of the number of possible cases in which given circumstances may combine to produce a given event, to the total number of possible cases in which the circumstances may conceivably combine in all ways, when nothing induces a belief that any particular case will occur rather than another.10 The ratio is thus a shorthand expression of the truth concerning a large series of events. The only truth expressed finally is as to the series as a whole, 11 without taking into account any special evidence as to any particular individual of the series.12 Nevertheless, having evidence only as to the whole, with none as to particulars, the mathematical calculation affords the most accurate and rational method of measuring the proper effect of this evidence upon belief.
This proposition receives recognition in the law when it becomes necessary in estimating the amount of a recovery, the right to which is shown by more satisfactory evidence, 13 to determine the future date at which an individual will die (or would have died but for the conduct of defendant). Here the facts of experience consist of statistics showing the ages to which a large number of individuals of the given age have been observed to live. Mathematics is applied to these statistics to give the probable expectancy, which is almost everywhere admitted as evidence.14 Now, as pointed out by a learned writer, it is not the futurity of an event which induces us to act upon such evidence, but the absence
9 See Mill, SYSTEM OF LOGIC, 3 ed., Bk. 3, ch. 18, $ 1. 10 Cf. the definition by La Place in 22 Encyclopædia Britannica, 11 ed., tit. Probability, p. 377.
11 The conception of mathematical theory of probability as dealing with a series of events rather than with particular individuals of a series is developed in VENN, THE LOGIC OF CHANCE, ch. 1, $8 1-9.
12 This accounts for the seeming paradox that many events which are determined by mathematics to be improbable (on the whole) are easily believed to have happened. Any evidence to prove that a particular individual belongs to a class occurring very infrequently in the series in no way contradicts a calculation which did not consider the particular evidence, and conversely the particular evidence is not weakened because of the calculation. Indeed, the only reason for making a calculation based on general data is the absence of more satisfactory data relative to the particular event. So when a mathematically improbable event is asserted to have happened, the entire basis of probability is shifted. The question becomes one of the probability of the individual's veracity and of the probable trustworthiness of his sources of information; or if an eyewitness, of the probable accuracy of his observation.
13 It will be noted that the evidence required to induce a court to give any judgment at all must show stronger probability than that required to fix the amount of such a judgment, once it is shown that a judgment should be given. This difference obviously rests solely on practical necessity. It is submitted that this fact is responsible for the apparent force of the example given by Hogan, J., in support of his argument (supra, n. 5). But it does not follow that evidence susceptible of mathematical treatment could never have sufficient weight to prove an issue requisite to recovery. A fortiori it does not follow that expert mathematical calculation upon such evidence should always have such small relevancy as to be inadmissible on such an issue.
14 See 3 WIGNORE, EVIDENCE, $ 1698.