Kolkey v. Grossinger, 13601.
| Decision Date | 01 April 1952 |
| Docket Number | No. 13601.,13601. |
| Citation | 195 F.2d 525 |
| Parties | KOLKEY v. GROSSINGER. |
| Court | U.S. Court of Appeals — Fifth Circuit |
George E. Patterson, Jr., Jack L. Petro, Miami, Fla., Charles A. Boyle, Chicago, Ill., for appellant.
Seymour D. Keith, Miami, Fla., for appellee.
Before HUTCHESON, Chief Judge, and BORAH and STRUM, Circuit Judges.
Alleging, in paragraph one of her complaint, that she "brings this action against * * * defendant * * * for alienating the affections of the plaintiff's husband * * * as hereinafter set forth", plaintiff below, appellant here, set out at great length the acts and things relied on as constituting such action, and sued for one million dollars as damages caused thereby.
The defendant, invoking the Florida statute, F.S.A. § 771.01, abolishing "the rights of action heretofore existing to recover sums of money as damage for the alienation of affections, criminal conversation, seduction or breach of contract to marry", moved to dismiss the action.
The district judge, upon consideration of the motion, entered an order1 dismissing the complaint with prejudice, and this appeal followed.
Here, though his complaint denominates his action as one for alienation of affections, and he fully concedes that the Florida Statute prohibits such an action, appellant's counsel puts up a straw man to try to knock him down. Beginning his statement of the case thus: "This is a suit * * * to recover damages * * * for the enticing away of appellant's husband by the appellee."
and ending thus:
he devotes his brief to this question, which, tendered for the first time here, is not before us for decision.
Matters standing thus, though appellee has taken up appellant's gauntlet and invited us to judge the outcome of their academic tilting, we must decline to do so. Addressing ourselves to the question before us: Did the judge err in dismissing the action?, we find ourselves in no doubt, that he did not, and that the judgment should be affirmed.
Affirmed.
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Magierowski v. Buckley, A--63
...Ikuta, 97 Cal.App.2d 787, 218 P.2d 584 (D.Ct.App.1950); Rotwein v. Gersten, 160 Fla. 736, 36 So.2d 419 (Sup.Ct.1948); Kolkey v. Grossinger, 195 F.2d 525 (5 Cir., 1952); Pennington v. Stewart, 212 Ind. 553, 10 N.E.2d 619 (Sup.Ct.1937); Thibault v. Lalumiere, 318 Mass. 72, 60 N.E.2d 349, 158 ......
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Gaines v. Poindexter, Civ. A. No. 6176.
...by special statutes, have outlawed their old rules permitting recovery of damages for alienation of affections. See, e. g., Kolkey v. Grossinger, 5 Cir., 195 F.2d 525. That Louisiana has not done so by express legislative action does not render the rule, established by its Supreme Court thr......
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Hutzel v. Franklin
... ... action for alienation of affections); Kolkey v ... Grossinger, 195 F.2d 525, 525 (5th Cir. 1952) (noting ... that Section 771.01 ... ...
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Ancora Corporation v. Stein
...not presented to the lower court, and which is different from the theory on which the lower court made its decision. See Kolkey v. Grossinger, 5 Cir., 195 F.2d 525. To the contrary, appellants point in their brief to a trial memorandum, in support of the motion for leave to file the counter......