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 |
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:
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:
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:
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:
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...
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