(dissenting).
There is no Texas statute or decision directly in point, but I think, under the Texas common law, the appellant is entitled to recover the reasonable value of the use in trade and commerce of his picture for advertisement purposes, to the extent that such use was appropriated by appellee.
The State of Texas, early in its history,1 adopted the common law of England, so far as it was not inconsistent with its constitution and laws, and provided that such common law, together with such constitution and laws, should be the rule of decision and continue in force until altered or repealed by the legislature.2
The right of privacy is distinct from the right to use one’s name or picture for purposes of commercial advertisement. The latter is a property right that belongs to every one; it may have much or little, or only a nominal, value; but it is a personal right, which may not be violated with impunity.
The great property rights created by the demands of modern methods of advertising are of comparatively recent origin, and may not have been in existence in January, 1840, but the common law of Texas is subject to growth and adaptation in the land of its adoption, as well as it was in the country of its origin.3 The capacity of the common law of Texas “to draw inspiration from every fountain of justice” has not been diminished by time, though a century has passed since its adoption by the legislature of that state.4
No one can doubt that commercial advertisers customarily pay for the right to use the name and likeness of a person who has become famous. The evidence in this case shows that appellant refused an offer by a New York beer company of $400 for an endorsement of its beer, and the appellee apparently recognized that it was necessary to obtain the consent of the various football players, because it required that releases be qbtained from them. This admittedly was not done. The fact *171that appellant made this stipulation with the publishers of the calendars may save it from the infliction of punitive damages, but cannot relieve it from the payment of actual damages measured by the value of the unauthorized use of appellant’s picture.
Texas statutes or decisions (if there were any) might make easier the task before us, but the absence thereof does not relieve us of the duty of finding and declaring the governing law of Texas and the forty other states of the Union in which a tort is alleged to have been committed by appellee in the use of appellant’s picture for the purpose of advertising beer. If in any of those forty-one states a tort was committed as alleged, the amount of damages proximately resulting therefrom should have been submitted to the jury.
The decision of the majority leaves the appellant without remedy for any non-libellous use made of his picture by advertisers of beer, wine, whiskey, patent medicines, or other non-contraband goods, wares, and merchandise. It also places every other famous stage, screen, and athletic star in the same situation.5 If one is popular and permits publicity to be given to one’s talent and accomplishment in any art or sport, commercial advertisers may seize upon such popularity to increase their sales of any lawful article without compensation of any kind for such commercial use of one’s name and fame. This is contrary to usage and custom among advertisers in the marts of trade. They are undoubtedly in the habit of buying the right to use one’s name or picture to create demand and good will for their merchandise.6 It is the peculiar excellence of the common law that, by general usage, it is shaped and moulded into new and useful forms.
Appellant’s pleadings allege facts that entitle him to recover for either a violation of his right of property or right of privacy, and because the court does not think he is entitled to recover for the latter does not relieve us of the duty of deciding whether or not any right of property was violated. He alleges that he has never given any person, firm, or corporation any right or permission to use or display his picture in the way it was used, and alleges further that its use by the appellee was in wanton disregard of “the* rights or privacy of this plaintiff.”
The facts out of which the law of this case arises were alleged in the complaint. It appears therefrom that the appellee committed a tort in misappropriating a valuable property right of appellant. Even if forms of action were not abolished, the appellant might seek damages for the tort or waive the tort and sue upon an implied promise to pay the reasonable value of the right appropriated. Appellant has not sought the wrong relief. He was not required to plead the law (ordinarily it is improper to do so) ; he was only required to state the ultimate facts upon which he relied for relief. If a litigant pleads the wrong law, it is the court’s duty nevertheless to apply the correct law to the facts of the case. This was true even before the new rules, and it is doubly true since their adoption. The plaintiff’s attorneys did not err in seeking alternative relief.
Unless the judgment of the court below is modified so as to dismiss this action without prejudice, there can be no doubt that, if appellant brings another suit, he will be met with a plea of res judicata, which will probably be sustained; but, if not sustained, appellant would be put to great and unnecessary expense and court costs merely because of a mistake as to the special character of the legal wrong done him by the appellant. One who sues for damages for a tort does not endorse or condone the wrong, regardless of the form in which he may seek damages therefor.
Because a peremptory instruction was given to the jury to find for the defendant, I respectfully dissent from the opinion of the majority upholding the judgment of the district court.
*172On Petition for Rehearing.
PER CURIAM.As neither of the judges who concurred in the judgment of the court in the above numbered and entitled cause is of the opinion that the petition for rehearing should be granted, it is ordered that said petition be and the same is hereby denied.
Act of January 20, 1840, Laws of Republic 1840, p. 3.
Revised Civil Statutes of Texas of 1925, Art. 1; Grigsby v. Reib, 105 Tex. 597, 153 S W. 1124, L.R.A.3915E, 1 Ann. Cits.19150, 1101; Great S. Life Ins. Go. V. Austin, 112 Tex. 1, 243 S.W. 778.
Of. Funk v. United States, 290 U.S. 371, 383, 54 S.Ot. 212, 78 L.Ed. 369.
Of. Hurtado v. California, 110 U.S. 516, 530, 4 S.Ot. Ill, 292, 28 L.Ed. 232.
Sergeant York is a nationally famous person, but no one would argue that his name or picture might be used commercially without his consent. Such an argument would be reductio ad absurdum.
Illustrative of the value of the use of one’s picture for advertising purposes, Gene Tunney says:
“While I was training for my second fight with Jack Dempsey I was offered $15,000 to endorse a certain brand of cigarettes. I didn’t want to be rude, so, in declining, I merely said I didn’t smoke. Next day the advertising man came back with another offer: $12,000 if I would let my picture be used with the statement that ‘Stinkies must be good, because all my friends smoke them.’ ” (This offer was also refused.) Reader’s Digest for December, 1941, page 23.