Times-Democrat Pub. Co. v. Mozee

• Decision Date: 04 April 1905
• Docket Number: 1,377.
• Citation: 136 F. 761
• Parties: TIMES-DEMOCRAT PUB. CO. v. MOZEE et al.
• Court: U.S. Court of Appeals — Fifth Circuit

136 F. 761

TIMES-DEMOCRAT PUB. CO. v. MOZEE et al.

No. 1,377.

United States Court of Appeals, Fifth Circuit.

April 4, 1905

Lawrence O'Donnell and Branch K. Miller, for plaintiff in error.

Wilhelm Mynderse, E. H. Farrar, E. B. Kruttschnitt, and B. F. Jonas for defendants in error.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

PER CURIAM.

This is an action to recover damages for libel, brought by a married woman, in her own right; her husband joining in the petition. No exceptions were filed to the sufficiency of the petition, and no objections made on the trial as to the admission of evidence or as to the charge of the trial judge to the jury. The verdict of the jury was as follows:

'We the jury, find in favor of plaintiff in suit, Mrs. Annie Oakley Mozee, wife of Frank E. Butler, in the sum of $7,500.'

On the motion for a new trial, remittitur of $2,500 was entered, and thereupon judgment was entered in favor of Annie Oakley Mozee, wife of Frank E. Butler, against the defendant, the Times-Democrat Publishing Company, for the sum of $5,000.

The only question raised on this writ of error open for consideration is whether the plaintiff below had a right to sue and recover in her own name the damages complained of the plaintiff in error contending that 'the shame, disgrace, and mental suffering brought upon her by the publication complained of are not personal injuries in the sense of the act of the General Assembly of Louisiana (No. 68, p. 95, of the Session of 1902), nor were they the result of or caused by any bodily physical or personal injuries suffered or sustained by her'; and the contention is that 'the damages caused by the injuries described in the petition fall into and form part of the community of acquets and gains existing between the said Annie Oakley Mozee Butler and her husband, Frank E. Butler, and that she is without any right or authority in law to claim such damages or to prosecute any suit therefor.' Other questions suggested by the assignment of errors or argued by counsel are not open for review, because no predicate was laid in the court below.

It is unquestioned that prior to the act of 1902, above referred to, damages for injuries to the wife fell into and formed part of the community of acquets and gains presumed to exist between husband and wife, and that the husband, as head and master of the community, could alone sue for and recover the same. See Meyerson v. Alter (C.C.) 11 F. 688, and McClure v. Martin, 104 La. 496, 29 So. 227, and cases there cited. Act No. 68, p. 95 of 1902, is as follows:

'Be it enacted by the General Assembly of the state of Louisiana, that article 2402 of the Revised Civil Code of 1870 be amended and re-enacted so as to read as follows: 'Art. 2402. This partnership or community consists of the profits of all the effects of which the husband has the administration and enjoyment either of right or in fact, of the produce of the reciprocal industry and labor of both husband and wife, and of the estate which they may acquire during the marriage, either by donations made jointly to them both, or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase. But damages resulting from personal injuries to the wife shall not form part of this community, but shall always be and remain the separate property of the wife and recoverable by herself alone; provided where the injuries sustained by the wife result in her death, the right to recover damages shall be as now provided for by existing laws."

The question in this case, narrowed down, then, is whether the injuries to character and mental suffering resulting from a libelous publication are personal injuries in the true sense and meaning of the act above quoted. We are advised of no decision of the Supreme Court of Louisiana on the point, and we are therefore remitted to our own construction of the statute.

1. We can find no reason, and counsel suggests none, for the discrimination contended for. The mischief to be remedied by ...