Brazier v. Cherry, No. 18620.

CourtU.S. Court of Appeals — Fifth Circuit
Writing for the CourtJONES and BROWN, Circuit , and DE VANE
Citation293 F.2d 401
PartiesHattie BRAZIER, Appellant, v. W. B. CHERRY et al., Appellees.
Decision Date28 July 1961
Docket NumberNo. 18620.

293 F.2d 401 (1961)

Hattie BRAZIER, Appellant,
v.
W. B. CHERRY et al., Appellees.

No. 18620.

United States Court of Appeals Fifth Circuit.

July 7, 1961.

Rehearing Denied July 28, 1961.


293 F.2d 402

D. L. Hollowell, Atlanta, Ga., C. B. King, Albany, Ga., Thurgood Marshall, Jack Greenberg, New York City, Norman C. Amaker, James M. Nabrit, III, New York City, of counsel, for appellant.

Charles J. Bloch, Ellsworth Hall, Jr., Macon, Ga., Bloch, Hall, Groover & Hawkins, Macon, Ga., of counsel, for appellees.

Before JONES and BROWN, Circuit Judges, and DE VANE, District Judge.

JOHN R. BROWN, Circuit Judge.

This case raises squarely the question whether death resulting from violation of the Civil Rights Statutes gives rise to a federally enforceable claim for damages sustained by the victim during his lifetime, by his survivors, or both. The District Court by sustaining a motion to dismiss for failure to state a claim, 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 widow individually and as administratrix of the decedent's estate. Sued as defendants were the Sheriff of Terrell County, Georgia, the Chief of Police of Dawson (Terrell County), Georgia and three police officers plus an insurance company as surety on the Sheriff's official bond. It charged that about April 18, 1958, two of the police officers acting under color of state laws illegally arrested the decedent and while in their custody wilfully and brutally attacked him without cause. These actions were intended to, and did, deprive the decedent of the rights and privileges of being secure in his person, of due process and equal protection of the law. Thereafter on April 20, 1958, all five of the named defendant officers conspired to deprive decedent of rights secured by the Constitution and laws of the United States when, with intent to discriminate against him, they removed him illegally from jail and beat him to the point of unconsciousness. From these injuries decedent died a few days later on April 25, 1958. The decedent was gainfully employed at a monthly salary of $300 and had a life expectancy of 33.68 years. Damages in the total sum of $180,448 were sought.1 The suit was filed nearly two years later, April 19, 1960.

Jurisdiction was formally invoked under 28 U.S.C.A. § 1331 as a suit with requisite jurisdictional amount arising under the Constitution and laws of the United States and also under 28 U.S. C.A. § 1343(1), (2), (3) and (4).2 In connection with the latter the complaint made specific reference to 42 U.S.C.A.

293 F.2d 403
§ 1983,3 § 1981,4 and § 1985(3).5 While 42 U.S.C.A. § 19866 was not expressly cited, the complaint, construed as it must be, Conley v. Gibson, 1957, 355 U.S. 41, at pages 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80, was sufficient to invoke it as well. Baldwin v. Morgan, 5 Cir., 1958, 251 F.2d 780, at pages 790, 791; Lewis v. Brautigam, 5 Cir., 1955, 227 F.2d 124, at pages 128, 55 A.L.R.2d 505

The law has long and frequently stated and restated its apologia that claims for injury to the person die with the victim and that amelioration of the harshness of this principle must come from legislation. Van Beeck v. Sabine Towing Co., 1937, 300 U.S. 342, 57 S.Ct. 452, 81 L.Ed. 685, 1937 AMC 311; Emerson v. Holloway Concrete Products Co., 5 Cir., 1960, 282 F.2d 271, at page 274, certiorari denied 364 U.S. 941, 81 S.Ct. 459, 5 L.Ed. 2d 372.

We are dealing, therefore, with statutory interpretation. If that process were merely one of searching for an express, categorical provision, the case would quickly end, and for that matter, so would a considerable amount of the business of judging. For it has to be acknowledged that save for § 1986, note 6, supra, which refers specifically to "legal representatives" of the person injured and a one-year right of action for $5,000 damages for "death * * * caused by * * * wrongful act and neglect," the other sections do not expressly refer to actions for death or the survival of claims arising from civil rights violations. It then becomes a question whether in these statutes or related

293 F.2d 404
acts Congress has impliedly established a right of survival.7

Relevant to that search, of course, would be the question whether the statutes under scrutiny not only fail to prescribe survival but, on the contrary, reflect a purpose negativing survival. That approach epitomizes one of the arguments vigorously pressed in support of the District Court's judgment. The defendants point to the fact that in § 1983, note 3, supra, the civil sanction afforded prescribes that the violator "shall be liable to the party injured." Likewise, they urge that § 1985(3), note 5, supra, accords the right of "an action for the recovery of damages" to the "party so injured or deprived." On these rather precise words it is then argued that this reflects a careful discriminating selection by Congress. Consequently, the argument runs, Congress purposefully extended the sanction of a civil damage suit only to the person who was the immediate physical victim of such violations. Additional strength to this contention is then found in § 1986, note 6, supra, which expressly recognizes survival and makes provision for suit after death. This is the assertion of the familiar and related rules that specific mention with respect to a specific situation impliedly excludes application generally or elsewhere.

Of these and similar approaches, we should give heed to the words of Mr. Justice Jackson for the Court in SEC v. Joiner Leasing Corp., 1943, 320 U.S. 344, at pages 350-351, 64 S.Ct. 120, at page 123, 88 L.Ed. 88. "Some rules of statutory construction come down to us from sources that were hostile toward the legislative process itself and thought it generally wise to restrict the operation of an act to its narrowest permissible compass. However well these rules may serve at times to aid in deciphering legislative intent, they long have been subordinated to the doctrine that courts will construe the details of an act in conformity with its dominating general purpose, will read text in the light of context and will interpret the text so far as the meaning of the words fairly permits so as to carry out in particular cases the generally expressed legislative policy."8

In that light — and without regard to the final question whether survival was adequately accorded by some statute — it defies history to conclude that Congress purposely meant to assure to the living freedom from such unconstitutional deprivations, but that, with like precision, it meant to withdraw the protection of civil rights statutes against the peril of death. The policy of the law and the legislative aim was certainly to protect the security of life and limb as well as property against these actions. Violent injury that would kill was not less prohibited than violence which would cripple.9

We have fresh evidence of the broad and sweeping aims of Congress with specific regard to § 1983. Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed. 2d 492, makes an extensive re-examination of the legislative history and summarizes its purpose in this way. "The debates are long and extensive. It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because by

293 F.2d 405
reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claim of citizens to the enjoyment of rights, privileges, and immunity guaranteed by the Fourteenth Amendment might be denied by the state agencies." 365 U.S. 167, 81 S. Ct. 473, at page 480, 5 L.Ed.2d 492, at page 501. "It is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the State and the state remedy need not be first sought and refused before the federal one is invoked." 81 S.Ct. at page 482, 5 L.Ed.2d 492, at page 503

With a clear congressional policy to protect the life of the living from the hazard of death caused by unconstitutional deprivations of civil rights, where then do we find the statutory machinery to give effective redress after death? We find it unnecessary to pass on the historically documented contention10 of the plaintiff that § 1986, note 6, supra, by its incorporating reference to the "second section of this act"11 grants a general right of action either "to the person injured" or "his legal representatives" in the broad terms of the first clause without the time or monetary limitations set forth in the proviso.12 This is so because we are of the clear view that Congress adopted as federal law the currently effective state law on the general right of survival. This was done by § 1988.13 With

293 F.2d 406
respect to vindication of federally guaranteed civil rights, Congress provided that in all cases where the laws of the United States are "suitable to carry the same into effect" but are "not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law" then the "common law, as modified and changed by the constitution and statutes of the State" in which the federal court is sitting "so far as the same is not inconsistent with the Constitution and laws of the United States" are to "be extended to and govern * * * the trial and disposition" of the case

In determining the impact of this section on our specific problem, we should bear in mind again that we are concerned solely with statutory interpretation. Without a doubt Congress has the constitutional power to spell out a comprehensive right of survival for civil rights claims. The question is therefore one of the everyday variety: has it done so by this means? Since legislation has been the...

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192 practice notes
  • Javits v. Stevens, No. 73 Civ. 5339-LFM.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 24, 1974
    ...Los Angeles City High School Dist., supra, 452 F.2d at 674. 10 In re Lincoln, 102 Cal.App. 733, 283 P. 965 (1929). 11 Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); Pritchard v. Smith, 289 F.2d 153 (8th Cir. 1961); Holmes v. Silve......
  • Soto v. City of Sacramento, No. Civ. S-79-680 LKK.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • August 24, 1983
    ...v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1941); Stringer v. Dilger, 313 F.2d 536 (10th Cir.1963); Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); Jackson v. Duke, 259 F.2d 3 (5th Cir. 1958); Brooks v. Moss, 242 ......
  • Guyton v. Phillips, No. C-74-0357 MHP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • December 18, 1981
    ...of civil rights which accrued before death survives the decedent where there is a state law providing for survival. Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (......
  • Bell v. Board of Educ. of County of Fayette, No. CIV.A. 5:03-0334.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • November 10, 2003
    ...v. City of Dallas, 770 F.2d 1334, 1337 (5th Cir.1985); Grandstaff v. City of Borger, 767 F.2d 161, 172 (5th Cir.1985); Brazier v. Cherry, 293 F.2d 401, 408 (5th Cir.1961); O'Connor v. Several Unknown Correctional Officers, 523 F.Supp. 1345, 1348 (E.D.Va.1981). Among them is the only court i......
  • Request a trial to view additional results
192 cases
  • Javits v. Stevens, No. 73 Civ. 5339-LFM.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 24, 1974
    ...Los Angeles City High School Dist., supra, 452 F.2d at 674. 10 In re Lincoln, 102 Cal.App. 733, 283 P. 965 (1929). 11 Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); Pritchard v. Smith, 289 F.2d 153 (8th Cir. 1961); Holmes v. Silve......
  • Soto v. City of Sacramento, No. Civ. S-79-680 LKK.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • August 24, 1983
    ...v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1941); Stringer v. Dilger, 313 F.2d 536 (10th Cir.1963); Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); Jackson v. Duke, 259 F.2d 3 (5th Cir. 1958); Brooks v. Moss, 242 ......
  • Guyton v. Phillips, No. C-74-0357 MHP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • December 18, 1981
    ...of civil rights which accrued before death survives the decedent where there is a state law providing for survival. Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (......
  • Bell v. Board of Educ. of County of Fayette, No. CIV.A. 5:03-0334.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • November 10, 2003
    ...v. City of Dallas, 770 F.2d 1334, 1337 (5th Cir.1985); Grandstaff v. City of Borger, 767 F.2d 161, 172 (5th Cir.1985); Brazier v. Cherry, 293 F.2d 401, 408 (5th Cir.1961); O'Connor v. Several Unknown Correctional Officers, 523 F.Supp. 1345, 1348 (E.D.Va.1981). Among them is the only court i......
  • Request a trial to view additional results

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