Brazier v. Cherry
Decision Date | 11 August 1960 |
Docket Number | Civ. A. No. 475. |
Parties | Hattie 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. |
Court | U.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.
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:
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 sections — 1983 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:
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:
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 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.
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