Brazier v. Cherry

Decision Date11 August 1960
Docket NumberCiv. A. No. 475.
PartiesHattie BRAZIER, Individually and as Administratrix of the Estate of James Brazier, Plaintiff v. W. B. CHERRY, Randolph McDonald, Zachry T. Mathews, Sheriff, Shirah Chatman, Howard Lee, and The Fidelity and Casualty Company of New York, Defendants.
CourtU.S. District Court — Middle District of Georgia

D. L. Hollowell, Atlanta, Ga., C. B. King, Albany, Ga., for plaintiff.

Charles J. Bloch, Macon Ga. Joseph M. Ray, Sol. Gen., Cuthbert, Ga., for defendants.

BOOTLE, District Judge.

In this action plaintiff, individually and as administratrix of the estate of James Brazier, her deceased husband, seeks to recover damages for injuries to and the subsequent death of James Brazier resulting from alleged acts "calculated to deprive the said James Brazier of his rights and privileges to be secured in his person and further to deprive him of due process and equal protection of the law." She names as defendants the Chief of Police and three police officers of the City of Dawson, Terrell County, Georgia, the Sheriff of Terrell County, Georgia, and The Fidelity and Casualty Company of New York, surety on the bond of defendant sheriff.

Defendants have filed a motion to dismiss the complaint on two grounds, inter alia: 1) It fails to state a claim upon which relief can be granted; and 2) the Court lacks jurisdiction over the subject matter. All parties have submitted written briefs on the questions raised by defendants' motion, and after careful study and consideration, this court is of the opinion that defendants' motion must be granted. In considering said motion the court has taken the allegations of the complaint as amended as true.

Jurisdiction of this court is invoked under the provisions of 28 U.S.C.A. § 1343, which provides in part as follows:

"The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
"(1) To recover damages for injury to his person or property, or because of the deprivation of any right or privilege of a citizen of the United States, by any act done in furtherance of any conspiracy mentioned in section 1985 of Title 42;
* * * * * *
"(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States."

This section gives the district courts jurisdiction only of civil actions "authorized by law to be commenced." Thus, the question arises whether the complaint sets forth an action "authorized by law to be commenced."

The complaint also invokes jurisdiction under the provisions of 42 U.S.C.A. §§ 1981, 1983, and 1985. Section 1981 provides for equal rights under the law, but does not create any civil action for deprivation of such rights. Section 1983 creates a civil action for deprivation of rights, and Section 1985 provides for an action for damages resulting from a conspiracy to interfere with civil rights.

The language of these two sections1983 and 1985 — is particularly important in resolving the question before this court. Section 1983 provides:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, 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." Emphasis supplied.

Similarly, Section 1985 provides in part:

"In any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators." Emphasis supplied.

These sections which create causes of action to redress deprivations of civil rights vest such causes of action in the party injured or deprived. Neither section provides for the survival of the right of action after the death of the "party injured." Therefore, this court must answer the question whether, in the absence of a statutory provision for survival, a right of action for deprivation of civil rights is extinguished by the death of the "party so injured or deprived."

The Supreme Court was confronted with a similar problem in Michigan Cent. R. Co. v. Vreeland, 1913, 227 U.S. 59, 33 S.Ct. 192, 195, 57 L.Ed. 417, in determining whether the right of action created by the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., survived the death of the party injured. In deciding that the right of action was extinguished by the death of the employee, the Court said:

"The statutes of many of the states expressly provide for the survival of the right of action which the injured person might have prosecuted if he had survived. But unless this Federal statute which declares the liability here asserted provides that the right of action shall survive the death of the injured employee, it does not pass to his representative, notwithstanding state legislation. The question of survival is not one of procedure, `but one which depends on the substance of the cause of action.' * * *
"Nothing is better settled than that, at common law, the right of action for an injury to the person is extinguished by the death of the party injured. The rule, `Actio personalis moritur cum persona' applies, whether the death from the injury be instantaneous or not."

This being true, the right of action which James Brazier might have been vested with, had he lived, was extinguished with his death.

The Supreme Court has also said:

"It is settled that at common law no private cause of action arises from the death of a human being. * * * The right of action, both in this country and in England, depends wholly upon statutory authority." Panama R. Co. v. Rock, 1924, 266 U.S. 209, 45 S.Ct. 58, 69 L.Ed. 250.
"`It is a singular fact that by the common law the greatest injury which one man can inflict on another, the taking of his life, is without a private remedy.'" The Harrisburg v. Rickards, 1886, 119 U.S. 199, 7 S.Ct. 140, 142, 30 L.Ed. 358.

There being no federal statute giving this plaintiff a cause of action for the wrongful death of her husband, this action cannot be maintained.

Plaintiff also attempts to invoke the diversity jurisdiction of this court, alleging that defendant Fidelity and Casualty Company of New York is a New York corporation. But this court does not have diversity jurisdiction unless all defendants are citizens of states diverse from the state of plaintiff's citizenship. Russell v. Basila Mfg. Co., 5 Cir., 1957, 246 F.2d 432. It affirmatively appears from plaintiff's complaint that plaintiff is a citizen of Georgia, and the individual defendants, being public officers of Dawson or Terrell County, Georgia, are obviously citizens of this state also. Therefore, diversity jurisdiction is lacking.

Even if Fidelity and Casualty Company of New York were the sole defendant named, the court would still lack jurisdiction for the reason that plaintiff's complaint affirmatively shows that the bond executed by Fidelity as surety is limited to $10,000, while the jurisdictional amount required in a diversity action is more than $10,000.

For the reasons herein given, the court is of the opinion that this action cannot be maintained in this court. Therefore, defendants' motion to dismiss the action is hereby granted. Because of the disposition given defendants' motion to dismiss, it is unnecessary to rule on defendants' motions to strike and motions for more definite statement.

Let defendants' counsel prepare an appropriate order, submitting same to opposing counsel who shall have five days for suggestions as to form.

On Motion for Reconsideration

On June 11, 1960, counsel for plaintiff filed a motion for reconsideration of the action of this court in dismissing plaintiff's complaint in the above-styled action. After carefully considering briefs submitted by counsel for all parties, the court is of the opinion that its order issued June 1, 1960 is in accordance with law, and that such order should not be vacated or set aside.

Counsel for plaintiff have...

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3 cases
  • Sharbaugh v. Beaudry
    • United States
    • U.S. District Court — Northern District of Florida
    • 14 Julio 2017
    ...provided for the survival of the decedent's personal injury claim or created a wrongful death cause of action. Brazier v. Cherry , 188 F.Supp. 817, 821 (M.D. Ga. 1960) (dismissing because there was "no federal statute giving this plaintiff a cause of action for the wrongful death of her hus......
  • Waites v. Limestone Corr. Facility
    • United States
    • U.S. District Court — Northern District of Alabama
    • 26 Junio 2017
    ...decision that under § 1988 Georgia's wrongful death statute is incorporated into § 1983") (citation omitted). 125. Brazier v. Cherry, 188 F. Supp. 817, 819 (M.D. Ga. 1960). 126. The omitted footnote in Carringer observed that its construction of Brazier's holding wasconsistent with the curr......
  • Brazier v. Cherry
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 28 Julio 1961
    ...F.R.Civ.P. 12(b), 28 U.S.C.A., and for want of jurisdiction over the claim, answered this broadly in the negative. Brazier v. Cherry, D.C.M.D.Ga., 1960, 188 F.Supp. 817. The complaint may be severely compressed since for these motions it was taken as true. The suit was by the surviving wido......

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