Story Case

The Kimbell Face Cream Company used a portrait of Helen Dunn, a girl of great beauty, on one brand of its face creams, calling the cream "Helen's Choice". This was done without the consent of Miss Dunn, who was seventeen years of age, and also without the consent of her parents. When the company refused to discontinue the use of this picture, Miss Dunn's father brought an action to enjoin further use of the portrait, and also for damages suffered by the use to that time. The company denied that the father had any cause of action, stating that if any right existed, it was alone in the daughter. Is this true?

Ruling Court Case. Peppercorn Vs. City Of Black River Falls, Volume 89 Wisconsin Reports, Page 38

In this case it appears that the plaintiff, Peppercorn, was an infant. While walking on the streets of the defendant city he fell and received severe injuries. His fall was caused by the defective sidewalks maintained by the city. Because of the injuries he was prevented from working for several months. He brought this action against the city, claiming damages for the injury. It was contended by the city that the plaintiff could not recover because he was an infant.

Decision: The Court was of opinion that he could not recover for the loss of time during his minority. His services belong to his parents so long as he continues under age and remains under the care and protection of them. Since it appeared that the plaintiff was still in the care and control of his parents, the Court decided that the parents and not the infant, were the proper parties to sue.

Note : The Court did not state that the infant could not recover for the injury personal to itself. The Court merely held that the infant cannot recover for loss of time or loss of wages.

Ruling Law. Story Case Answer

So long as a minor remains under parental control, he may not recover for loss of time or loss of earnings because of wrong done to him by third persons, but the infant can recover for the injury personal to himself, that is, primarily for the pain and hurt to himself.

An injury to a child gives rise to two causes of action, one on behalf of the parent and the other on behalf of the child. It follows that a recovery by the parent for the injury and loss which he has suffered, does not bar a recovery by the child for an injury personal to himself; and a recovery by the parent on behalf of the child for the injury personal to the latter does not bar a recovery by the parent for his own loss.

In the Story Case, there was no right as to earnings or compensation involved, and therefore Miss Dunn's father had no cause of action against the company. The injury and wrong coming from the use of the portrait was personal to the daughter, and the suit should have been commenced in her name and for her alone. The answer of the company is therefore correct.