Davis v. Johnson, No. 55 C 191.

CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
Writing for the CourtMr. Augustus N. Hand, C. J., the court said
Citation138 F. Supp. 572
PartiesSarah B. DAVIS, as Administratrix of the Estate of Henry Blackwell, Deceased, v. Lawrence JOHNSON.
Docket NumberNo. 55 C 191.
Decision Date30 December 1955

138 F. Supp. 572

Sarah B. DAVIS, as Administratrix of the Estate of Henry Blackwell, Deceased,
v.
Lawrence JOHNSON.

No. 55 C 191.

United States District Court N. D. Illinois, E. D.

December 30, 1955.


138 F. Supp. 573

Harold R. Gordon, Chicago, Ill., for plaintiff.

John C. Melaniphy, Corp. Counsel, Edward R. Hartigan, Asst. Corp. Counsel, Chicago, Ill., for defendant.

BARNES, Chief Judge.

This cause is before the court on defendant's motion to dismiss the complaint for lack of jurisdiction over the subject matter, or, in the alternative, for failure to state a claim upon which relief can be granted.

As appears from the complaint, this is an action, brought by the Administratrix of the Estate of Henry Blackwell Deceased, against a police officer of the City of Chicago, to recover damages under the Civil Rights statute, Sec. 1983, Title 42 United States Code Annotated. It is alleged that defendant, acting under color of law and without provocation, struck Blackwell over the head with a loaded revolver, causing a bullet to be discharged from the revolver, and killing Blackwell.

Section 1983, Title 42, United States Code Annotated, upon which the action is based, reads:

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

It is the defendant's contention that Henry Blackwell's rights under the above statute were purely personal and do not survive him.

The only question presented by this motion is whether or not the plaintiff, Administratrix of the Estate of Henry Blackwell, Deceased, has a right to bring this action.

Congress has not, generally speaking, attempted to prescribe the causes of action which shall survive the death of either party to suits in the courts of the United States. It has been established that, where a cause of action is given by a federal statute and no specific provision is made by an act of Congress for its survival, it survives or not according to the principles of the common law; but if there is a Federal statute relating to the subject, the statute is controlling. 1 C.J.S., Abatement and Revival, § 135, p. 183; § 27.10 Cyc. Federal Procedure; United States v. Leche, D.C., 44 F.Supp. 765; Sullivan v. Associated, etc., 2 Cir., 6 F.2d 1000, 42 A.L.R. 503. Causes of action under Federal statutes have been held to survive although the statute is silent on the question. In Moore v. Backus, 7 Cir., 78 F.2d 571, 101 A.L.R. 379, a right of action to recover triple damages for violation of the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1-7, 15 note, was...

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8 practice notes
  • Holmes v. Silver Cross Hospital of Joliet, Illinois, No. 71 C 2284.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • January 17, 1972
    ...See also, Pritchard v. Smith, 289 F.2d 153 (8th Cir. 1961); Galindo v. Brownall, 255 F.Supp. 930 (S.D.Cal.1966); Davis v. Johnson, 138 F.Supp. 572 (N.D.Ill.1955); Antieu, Federal Civil Rights Act, § 91, n. 5 and authorities cited We must, therefore, look to Illinois law concerning survival ......
  • Hall v. Wooten, No. 73-2078
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 19, 1974
    ...of Joliet, Illinois, 340 F.Supp. 125 (N.D.Ill.1972), Galindo v. Brownell, 255 F.Supp. 930 (S.D.Cal.1966). See also, Davis v. Johnson, 138 F.Supp. 572 (N.D.Ill.1955), but see Landman v. Royster, 354 F.Supp. 1302 (E.D.Va.1973), where an action for injury to the person was brought against the ......
  • Dear v. Rathje, No. 72 C 2018.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • March 17, 1975
    ...was spread of record. Whether or not plaintiffs' action survives will have to be determined by Illinois law. See Davis v. Johnson, 138 F.Supp. 572 (N.D.Ill.1955); Holmes v. Silver Cross Hospital, 340 F.Supp. 125 (N.D.Ill. The Illinois legislature has specifically excepted slander and libel ......
  • Johnson v. Household Finance Corp., No. 78-1040.
    • United States
    • United States District Courts. 7th Circuit. Southern District of Illinois
    • July 21, 1978
    ...1, 7 (N.D. Ill.1975);2 Holmes v. Silver Cross Hospital of Joliet, Illinois, 340 F.Supp. 125, 128-129 (N.D.Ill.1972); Davis v. Johnson, 138 F.Supp. 572 (N.D.Ill.1955). In Holmes, the court said that, absent any specific congressional enactment on the subject, "state law in relation to surviv......
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8 cases
  • Holmes v. Silver Cross Hospital of Joliet, Illinois, No. 71 C 2284.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • January 17, 1972
    ...See also, Pritchard v. Smith, 289 F.2d 153 (8th Cir. 1961); Galindo v. Brownall, 255 F.Supp. 930 (S.D.Cal.1966); Davis v. Johnson, 138 F.Supp. 572 (N.D.Ill.1955); Antieu, Federal Civil Rights Act, § 91, n. 5 and authorities cited We must, therefore, look to Illinois law concerning survival ......
  • Hall v. Wooten, No. 73-2078
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 19, 1974
    ...of Joliet, Illinois, 340 F.Supp. 125 (N.D.Ill.1972), Galindo v. Brownell, 255 F.Supp. 930 (S.D.Cal.1966). See also, Davis v. Johnson, 138 F.Supp. 572 (N.D.Ill.1955), but see Landman v. Royster, 354 F.Supp. 1302 (E.D.Va.1973), where an action for injury to the person was brought against the ......
  • Dear v. Rathje, No. 72 C 2018.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • March 17, 1975
    ...was spread of record. Whether or not plaintiffs' action survives will have to be determined by Illinois law. See Davis v. Johnson, 138 F.Supp. 572 (N.D.Ill.1955); Holmes v. Silver Cross Hospital, 340 F.Supp. 125 (N.D.Ill. The Illinois legislature has specifically excepted slander and libel ......
  • Johnson v. Household Finance Corp., No. 78-1040.
    • United States
    • United States District Courts. 7th Circuit. Southern District of Illinois
    • July 21, 1978
    ...1, 7 (N.D. Ill.1975);2 Holmes v. Silver Cross Hospital of Joliet, Illinois, 340 F.Supp. 125, 128-129 (N.D.Ill.1972); Davis v. Johnson, 138 F.Supp. 572 (N.D.Ill.1955). In Holmes, the court said that, absent any specific congressional enactment on the subject, "state law in relation to surviv......
  • Request a trial to view additional results

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