Pritchard v. Smith

• Decision Date: 26 April 1961
• Docket Number: No. 16637.,16637.
• Citation: 289 F.2d 153
• Parties: Mrs. Mary Ellen PRITCHARD, wife of Charles C. Pritchard, Appellant, v. Eugene G. SMITH, Chief of Police, City of Little Rock, Arkansas, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

289 F.2d 153 (1961)

Mrs. Mary Ellen PRITCHARD, wife of Charles C. Pritchard, Appellant, v. Eugene G. SMITH, Chief of Police, City of Little Rock, Arkansas, Appellee.

No. 16637.

United States Court of Appeals Eighth Circuit.

April 26, 1961.

Sidney W. Provensal, Jr., New Orleans, La., made argument. Amis Guthridge, Little Rock, Ark., was with Sidney W. Provensal, Jr., New Orleans, La., on the brief, for appellant.

Joseph C. Kemp, Little Rock, Ark., made argument and filed brief on behalf of appellee.

Before SANBORN, VAN OOSTERHOUT and MATTHES, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

The sole issue presented by this appeal is whether plaintiff's action for damages to her person, brought pursuant to 42 U.S.C.A. § 1983 for alleged violation of civil rights, survived upon the death of the defendant. The trial court held the action did not survive and entered judgment of dismissal. This timely appeal followed.

Plaintiff in the complaint filed September 25, 1959, alleged that the defendant Smith, Chief of Police of Little Rock, Arkansas, acting under color of state law, violated her constitutional and civil rights. Plaintiff alleged that by direction of the defendant she was, without warning, or provocation, forcibly seized and taken to jail, beaten, manhandled, and injured. Plaintiff further asserts:

"She was denied her constitutional right to equal protection under the laws, was denied her constitutional right to see and talk with her attorney; she was illegally detained for an unreasonable length of time without charge; was subjected to constant and protracted questioning in relays; was denied the opportunity to give and post bail immediately upon her request, and was further subjected to the beatings and treatment as above described; all of which actions were the actions caused by the defendant herein."

Plaintiff asked damages for $50,000. The action is brought under 42 U.S.C.A. § 1983 to recover damages for personal injury sustained by defendant's alleged tortious acts. Jurisdiction of civil rights actions is conferred by 28 U.S.C.A. § 1343(4).

Defendant filed answer denying any wrongful conduct. Thereafter, suggestion of death of defendant and motion to dismiss were filed, from which it appears defendant died on March 18, 1960.

Plaintiff filed a motion for substitution wherein she shows that an administrator has been duly appointed for the estate of Eugene G. Smith, deceased, and asks the court to revive the action against such administrator, and to substitute the administrator as defendant.

After hearing, the court sustained the motion to dismiss the action upon the ground that the action did not survive upon defendant's death. The court cites the companion case of Lauderdale v. Smith, 186 F.Supp. 958, decided by it on the same day, in support of its judgment.

The Lauderdale case, like the present case, involved a civil rights action against the same defendant for vindication of rights personal to the plaintiff in such action. The basis of the court's determination that action for alleged violation of civil rights does not survive the defendant is thus stated by the court in the Lauderdale case:

"The right of action plaintiff seeks to enforce was created by Congress and is governed by federal substantive law. See Nelson v. Knox, 6 Cir., 1956, 230 F.2d 483. In the absence of Congressional provision for the survival of such cause of action we must resort to the common law, as developed in the federal courts. As so developed, the rule is said to be that causes of action akin to contract actions or to tort actions affecting property rights survive, while those akin to tort actions in the nature of personal wrongs abate, the reason for redressing purely personal wrongs ceasing to exist when the person inflicting the injury cannot be punished. Barnes Coal Corp. v. Retail Coal Merchants Ass\'n, 4 Cir., 1942, 128 F.2d 645.

"This federal rule, though contrary to the Arkansas legislation upon the subject — see Ark.Stats.1947, §§ 27-901, 27-902 (wrongs to person, other than slander and libel, survive death of wrongdoer) — controls this case. The gravamen of plaintiff\'s allegations being for the vindication of wrongs to his person, I hold that his cause of action abated upon the defendant\'s death." 186 F.Supp. 959.

We fully agree with the trial court's conclusion that this is an action arising under federal statute and that consequently federal law governs. In such a situation, the rule of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, does not apply.

Volume 1, Moore's Federal Practice, ¶¶ 0.322 and 0.323, discusses quite fully the problem of the law to be applied in adjudication of rights created by numerous federal statutes. By way of summary, Professor Moore in ¶ 0.328, page 3901, states:

"Where federal matters are involved (1) specific language of valid federal statutes will control when applicable; (2) where federal statutes do not clearly articulate the law to be applied, federal courts must fill the interstices; (3) federal courts can do this by reference to federal or state law; (4) the choice here depends on a number of different factors."

In ¶ 0.323 22, pp. 3757-59, he states:

"When the specific federal statutes do not cover the matter under consideration explicity there is a possibility that a state statute may be applied either because the federal statute by implication so requires or because the federal statute is keyed to some state-created right or status. On the other hand, a federal court may find that the interstices are to be filled by reference to federal decisonal law. The line between situations where reference must be made to state law and those where federal decisional law will control is not clear.

* * * * * *

"In applying a particular federal statute the courts are primarily concerned in divining and effectuating its policies. And to the extent that these policies refer to, incorporate, or depend on state law then the court will to that extent apply state law — not because of Erie, but because the statutory policy so requires."

Section 1983 does not deal expressly with the question of survivorship. In such a situation, "it is for the federal courts to fashion the governing rule * * * according to their own standards." Clearfield Trust Co. v. United States, 318 U.S. 363, 367, 63 S.Ct. 573, 575, 87 L.Ed. 838.

In cases arising under federal law, federal courts have in some instances determined the rights of the parties upon the basis of state law. United States v. Standard Oil Co. of California, 332 U.S. 301, 308, 67 S.Ct. 1604, 91 L.Ed. 2067, Tyson v. State of Iowa, 8 Cir., 283 F.2d 802, 805.

Just v. Chambers, 312 U.S. 383, 668, 61 S.Ct. 687, 85 L.Ed. 903, involved a federal admiralty action for personal injuries caused by carbon monoxide poisoning to a passenger of a ship while cruising in navigable Florida waters. The ship owner died. The court of appeals held that under the governing principles of admiralty law the maritime tort action against the owner did not survive. The Supreme Court reversed. The court recognized that the action did not survive under maritime law but stated it saw no reason why the Florida rule providing for survival of causes of action against a deceased tortfeasor should not be applied. The court states:

"For, while the injury occurred on navigable waters, these were within the limits of Florida whose legislation provided that the cause of action should survive. And it is not a principle of our maritime law that a court of admiralty must invariably refuse to recognize and enforce a liability which the State has established in dealing with a maritime subject. On the contrary, there are numerous instances in which the general maritime law has been modified or supplemented by state action, as e. g. in creating liens for repairs or supplies furnished to a vessel in her home port. The Lottawanna, 21 Wall. 558, 580 22 L.Ed. 654; The J. E. Rumbell, 148 U.S. 1, 12 13 S. Ct. 498, 500 37 L.Ed. 345. With respect to maritime torts we have held that the State may modify or supplement the maritime law by creating liability which a court of admiralty will recognize and enforce when the state action is not hostile to the characteristic features of the maritime law or inconsistent with federal legislation." 312 U.S. 387-388, 61 S.Ct. 691.

In Van Beeck v. Sabine Towing Co., 300 U.S. 342, 57 S.Ct. 452, 81 L.Ed. 685, the issue of whether the Merchant Marine Act, 46 U.S.C.A. § 688, gives a cause of action to a personal representative of a seaman whose death was caused by a maritime tort, is presented. The court held the action survived, calling attention to the statutory provision that seamen are granted the benefits of statutes conferring rights on death of railway employees. The court traces the history and background of the law denying survival and the inroads made upon such rule by statutes and decisions, and then states:

"Death statutes have their roots in dissatisfaction with the archaisms of the law which have been traced to their origin in the course of this opinion. It would be a misfortune if a narrow or grudging process of construction were to exemplify and perpetuate the very evils to be remedied. There are times when uncertain words are to be wrought into consistency and unity with a legislative policy which is itself a source of law, a new generative impulse transmitted to the legal system. `The Legislature has the power to decide what the policy of the law shall be, and if it has intimated its will, however indirectly, that will should be recognized and obeyed.\' Its intimation is clear enough in the statutes now before us that their effects shall not be stifled, without the warrant of clear necessity, by the perpetuation of a policy which now has had its day." 300 U.S. 350-351, 57 S.Ct. 456.

In Cox v. Roth, 348 U.S. 207, 75 S.Ct. 242, 99 L.Ed. 260, the court held that an action under the Jones Act survived the death of...