Davis v. Johnson

• Decision Date: 30 December 1955
• Docket Number: No. 55 C 191.,55 C 191.
• Citation: 138 F. Supp. 572
• Parties: Sarah B. DAVIS, as Administratrix of the Estate of Henry Blackwell, Deceased, v. Lawrence JOHNSON.
• Court: U.S. District Court — Northern District of Illinois

138 F. Supp. 572

Sarah B. DAVIS, as Administratrix of the Estate of Henry Blackwell, Deceased, v. Lawrence JOHNSON.

No. 55 C 191.

United States District Court N. D. Illinois, E. D.

December 30, 1955.

Harold R. Gordon, Chicago, Ill., for plaintiff.

John C. Melaniphy, Corp. Counsel, Edward R. Hartigan, Asst. Corp. Counsel, Chicago, Ill., for defendant.

BARNES, Chief Judge.

This cause is before the court on defendant's motion to dismiss the complaint for lack of jurisdiction over the subject matter, or, in the alternative, for failure to state a claim upon which relief can be granted.

As appears from the complaint, this is an action, brought by the Administratrix of the Estate of Henry Blackwell Deceased, against a police officer of the City of Chicago, to recover damages under the Civil Rights statute, Sec. 1983, Title 42 United States Code Annotated. It is alleged that defendant, acting under color of law and without provocation, struck Blackwell over the head with a loaded revolver, causing a bullet to be discharged from the revolver, and killing Blackwell.

Section 1983, Title 42, United States Code Annotated, upon which the action is based, reads:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State * * * subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

It is the defendant's contention that Henry Blackwell's rights under the above statute were purely personal and do not survive him.

The only question presented by this motion is whether or not the plaintiff, Administratrix of the Estate of Henry Blackwell, Deceased, has a right to bring this action.

Congress has not, generally speaking, attempted to prescribe the causes of action which shall survive the death of either party to suits in the courts of the United States. It has been established that, where a cause of action is given by a federal statute and no specific provision is made by an act of Congress for its survival, it survives or not according to the principles of the common law; but if there is a Federal statute relating to the subject, the statute is controlling. 1 C.J.S., Abatement and Revival, § 135, p. 183; § 27.10 Cyc. Federal Procedure; United States v. Leche, D.C., 44 F.Supp. 765; Sullivan v. Associated, etc., 2 Cir., 6 F.2d 1000, 42 A.L.R. 503. Causes of action under Federal statutes have been held to survive although the statute is silent on the question. In Moore v. Backus, 7 Cir., 78 F.2d 571, 101 A.L.R. 379, a right of action to recover triple damages for violation of the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1-7, 15 note, was held, under the common law, to survive death of the injured party. In Barnes Coal Corp. v. Retail Coal Merchants Ass'n, 4 Cir., 128 F.2d 645, 648, where it was held that an action to recover triple damages for violation of the Sherman Anti-Trust Act would survive the death of a person by or against whom it might have been brought, the court said:

"* * * it is well settled that, with respect to a cause of action created by act of Congress, the question of survival is not one of procedure but one which depends `on the substance of the cause of action.'"

In Bowles v. Farmers Nat. Bank, 6 Cir., 147 F.2d 425, at page 430, it was said:

"The question of the survival of the action, which did not exist at common law and is purely the creature of congressional enactment, is not governed by state statutes of survival. In the absence of an Act of Congress, the federal courts are entitled to apply the proper rules of federal law under their own standards."

The question of survival of actions under Section 1983, upon which this suit is based, has apparently never been adjudicated.

Counsel have cited no Federal statute decisive of the question, and the court finds none clearly so decisive.^*

It is provided by Section 1983 that the action may be brought by the "party injured". The object of Section 1983 is to protect persons against misuse of power possessed by virtue of state law and made possible because the wrongdoer is clothed with authority of state law It would seem inconsistent with the purpose of the act to say that a State officer should be responsible if he only injured a person and not responsible to anyone if he killed the person. As plaintiff points out, such a holding would encourage officers not to stop after they had injured but to be certain to kill. It may be noted, too, that Congress has by Section 1988 of Title 42 (quoted below) stated the policy that "suitable...