Rood v. Goodman

• Decision Date: 29 April 1936
• Docket Number: No. 7872,7921.,7872
• Citation: 83 F.2d 28
• Parties: ROOD v. GOODMAN. GOODMAN v. ROOD.
• Court: U.S. Court of Appeals — Fifth Circuit

83 F.2d 28 (1936)

ROOD v. GOODMAN.

GOODMAN v. ROOD.

Nos. 7872, 7921.

Circuit Court of Appeals, Fifth Circuit.

April 3, 1936.

Rehearing Denied April 29, 1936.

Gordon Gibson and Nat B. King, both of Laredo, Tex., and David E. Hume, of Eagle Pass, Tex., for Rood.

Douglas W. McGregor, U. S. Atty., and Forrest Lee Andrews, Asst. U. S. Atty., both of Houston, Tex., for Goodman.

Before FOSTER, HUTCHESON, and WALKER, Circuit Judges.

HUTCHESON, Circuit Judge.

Appellant is an astrologer. He lives in Laredo, Tex., and until stopped by a fraud order, was conducting there an astrological mail order business of considerable proportions. Appellee is the local postmaster at Laredo. In the conduct of his business of commercially practicing "the most ancient art or science of divining the fate or conduct of human beings from indications given by the positions of the stars," appellant operates on both sides of the Rio Grande, and uses the most modern systems of communication and transport. The soliciting or selling end of his business is on the Mexican side. There broadcasting from radio station XENT, Nuevo Laredo, he advertises and offers his wares for sale. These are astrological forecasts for the year, each compiled according to one of the twelve signs of the zodiac, his ability to answer questions, "by the use of astrology, numerology, psychology," and "horoscopes which he erects by means of astrology for any person who sends him $15 and the date of his birth." This is the part his question answering plays. As part of the broadcast he answers one question free, and offers to answer three questions for each person purchasing a forecast. The delivering and receiving end of his business is on the American side. There he uses a local office, where he employs seventeen girls as stenographers and mailing clerks, and the United States mail. Thus playing on and ministering to human credulity and folly, he was scattering and sowing from the Mexican side, and reaping and gathering on the American side of the river, a perennial harvest.

Appellee having under the authority and direction of a postal fraud order, issued March 28, 1933, stopped delivery of appellant's mail, and commenced returning it to the senders, appellant filed this suit to enjoin her from doing so. His bill, alleging his proficiency as an "astrologer, numerologist, and psychologist," and that he is now, and has been, since October 7, 1934, engaged in the legal and legitimate business of practicing his profession as an astrologer in the city of Laredo, Tex., alleged: That he broadcasts from Nuevo Laredo, Mexico, and receives his mail, which is in great volume, in Laredo, Tex. That broadcasting as an astrologer, he offers for sale for $1 an astrological forecast which contains a true, earnest, and sincere effort on his part to disclose astrological and numerological information, and also answers free one question, and offers to answer three more for each purchaser of his book. That in offering the book he uses no false or fraudulent pretenses or representations. He does not claim that it or he is infallible. He states that it merely contains information on these subjects. That as part of his system of selling he promises to return the dollar if the purchaser is not satisfied and that he has always done so. That in answering questions he makes it clear that he answers them by the use of his science, but that he does not purport to be infallible or possess supernatural powers, or claim to be a clairvoyant, a mindreader, or psychic, nor does he state that such answers are correct. That he discards and eliminates from his work clairvoyance, mind reading, spiritualism, and crystal gazing. That he also offers to make an individual astrological horoscope for $15. That by the use of his radio station he has built up a mail order business averaging $500 per day. He pleaded, too, that on August 14, 1934, when he was operating at Eagle Pass and New Orleans, he was ordered to show cause why a fraud order should not be issued against him. That in order to obviate the necessity of a hearing, he closed these businesses and signed a stipulation in which he agreed to discontinue, and he has discontinued, the sale of Cell Food Tablets, and Or-Ga-Tone, and that he would not in future solicit any money in payment for answers to questions upon "statements of his that he would and could correctly answer them" and that he has kept that agreement. He further alleged that though he has not violated the stipulation, nor in any way used the mails to defraud, and though no evidence was presented to the Postmaster General that he had done either, that official has found that he has done both, and has issued a fraud order on that finding.

Attached as exhibits are the stipulation, the finding of the Solicitor General before whom the stipulation was made, that in violation of it plaintiff was resuming his fraudulent mail order scheme, and a recommendation that a fraud order issue. Attached, too, is the postal fraud order. This recites that: "It has been made to appear to the Post-master General, upon evidence satisfactory to him, that defendant is conducting a scheme or device for obtaining money through the mails, by means of false and fraudulent pretenses, representations and promises." The stipulation, after reciting, "That the enterprise which plaintiff was then conducting through the mails from Eagle Pass, Texas and New Orleans, Louisiana, over a radio broadcasting station would be discontinued," recited: "That the enterprise heretofore operated through the mails as well as by means of radio broadcasts consisting of the obtaining of remittances through the mails upon pretenses, representations, and promises to the effect that said party, by means of astrology, numerology, harmonious vibrations, psychology or occult science, can and will correctly answer any question or questions submitted to him, has been absolutely discontinued and abandoned, and will not be resumed in the future by affiant under said name or any other name or names."

The defendant moved to dismiss the bill on three grounds: (a) The Postmaster General is a necessary, proper, and indispensable party to the action to enjoin the fraud order; (b) the plaintiff's bill shows that he is acting in violation of the stipulation; (c) that it shows that he has not exhausted his legal and administrative remedies before applying to a court of equity. Subject to the motion to dismiss, she answered in effect denying the claims of good faith, and alleging that plaintiff was deliberately exploiting the credulity of his listeners to obtain their money by a scheme and on pretenses and representations which he knew were false.

Plaintiff testified to his ability to foretell not every time, but many times, and to his sincere belief in that ability. He testified, too, to his facility in answering questions, and the long time he put in in doing so. He declared that he would work from 7:30 or 8 o'clock in the morning until one o'clock at night, and would personally attend to and bring his astrological, numerological, and psychological knowledge to bear upon, answering four to six thousand questions a week; that working with a dictaphone he answered from a thousand to twelve hundred questions a day. He affirmed and reaffirmed that he believed in the honesty and integrity of the business he was conducting, and that he was not trying to defraud or deceive any one. In support of his claims for astrology and of his belief in it, he offered the testimony of an astrologer, his one time tutor. He offered, too, the testimony of persons who had heard his broadcasts, to the effect that he had never made any positive statements or claims that he could absolutely foretell or foresee the future, but that he always stated that he was advising to the best of his ability. He proved, too, that to all persons expressing dissatisfaction with the booklets he sent their money back. There was general testimony as to the power and ability of astrologers in...