Thompson v. Curtis Publishing Co., 10525.
| Citation | 193 F.2d 953 |
| Decision Date | 23 January 1952 |
| Docket Number | No. 10525.,10525. |
| Parties | THOMPSON v. CURTIS PUBLISHING CO. |
| Court | U.S. Court of Appeals — Third Circuit |
William J. Woolston, Philadelphia, Pa., for appellant.
Philip H. Strubing, Philadelphia, Pa. (Evans, Bayard & Frick, Philadelphia, Pa., on the brief), for appellee.
Before GOODRICH and HASTIE, Circuit Judges, and BURNS, District Judge.
This case involves the law of defamation, survival of actions and right of privacy. Plaintiff's decedent sued the Curtis Publishing Company because of an article which had appeared in the Saturday Evening Post, February 1, 1947. This article was an advertisement by the Post for the efficacy of itself as an advertising medium. One of the features of this advertisement for advertising was a description of an invention which the plaintiff had patented back in 1896. It may be best described in terms of the patent application:
The defendant's publication treated this invention in a very lighthearted manner saying:
There are many obstacles in the path to recovery by the plaintiff in this case. But since there is one insurmountable obstacle so far as the claim for defamation is concerned, there is no reason for using good printer's ink for prolonging the opinion further than to state what that obstacle is. The plaintiff's intestate brought the action in 1947. He died May 20, 1950. The case came to trial January 15, 1951. The lawsuit is in federal court on the basis of diversity of citizenship only and the state law controls. What is the law of Pennsylvania with regard to survival of an action for defamation after the death of the plaintiff?
The common law on the subject was clear and is not even obscured by stating the maxim in Latin, "actio personalis moritur cum persona." The common law rule has been modified by statute and the legislation has been in the direction of cutting down the application of the rule. There is such a statute in Pennsylvania. But the Pennsylvania statute expressly excludes actions for libel and slander from the category of actions which survive the death of the plaintiff. Act of April 18, 1949, P.L. 512, § 601, 20 Purdon's Pa.Stats.Ann. § 320.601.
The plaintiff, however, points out that there is an English statute of 17 Charles II, chapter 8 (1665) which provides that the death of a party between verdict and judgment shall not be cause to abate an action. Plaintiff says that this statute is part of the common law of Pennsylvania. Then, he says that although the decedent's action did not come to trial between 1947 and 1950 that was not the plaintiff's fault. Part of...
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