Pritchard v. Smith, No. 16637.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtSANBORN, VAN OOSTERHOUT and MATTHES, Circuit
Citation289 F.2d 153
PartiesMrs. Mary Ellen PRITCHARD, wife of Charles C. Pritchard, Appellant, v. Eugene G. SMITH, Chief of Police, City of Little Rock, Arkansas, Appellee.
Docket NumberNo. 16637.
Decision Date26 April 1961

289 F.2d 153 (1961)

Mrs. Mary Ellen PRITCHARD, wife of Charles C. Pritchard, Appellant,
v.
Eugene G. SMITH, Chief of Police, City of Little Rock, Arkansas, Appellee.

No. 16637.

United States Court of Appeals Eighth Circuit.

April 26, 1961.


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

289 F.2d 154
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:

"The right of action plaintiff seeks to enforce was created by Congress and is governed by federal substantive law. See Nelson v. Knox, 6 Cir., 1956, 230 F.2d 483. In the absence of Congressional provision for the survival of such cause of action we must resort to the common law, as developed in the federal courts. As so developed, the rule is said to be that causes of action akin to contract actions or to tort actions affecting property rights survive, while those akin to tort actions in the nature of personal wrongs abate, the reason for redressing purely personal wrongs ceasing to exist when the person inflicting the injury cannot be punished. Barnes Coal Corp. v. Retail Coal Merchants Ass\'n, 4 Cir., 1942, 128 F.2d 645.
"This federal rule, though contrary to the Arkansas legislation upon the subject — see Ark.Stats.1947, §§ 27-901, 27-902 (wrongs to person, other than slander and libel, survive death of wrongdoer) — controls this case. The gravamen of plaintiff\'s allegations being for the vindication of wrongs to his person, I hold that his cause of action abated upon the defendant\'s death." 186 F.Supp. 959.

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
289 F.2d 155
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:

"When the specific federal statutes do not cover the matter under consideration explicity there is a possibility that a state statute may be applied either because the federal statute by implication so requires or because the federal statute is keyed to some state-created right or status. On the other hand, a federal court may find that the interstices are to be filled by reference to federal decisonal law. The line between situations where reference must be made to state law and those where federal decisional law will control is not clear.
* * * * * *
"In applying a particular federal statute the courts are primarily concerned in divining and effectuating its policies. And to the extent that these policies refer to, incorporate, or depend on state law then the court will to that extent apply state law — not because of Erie, but because the statutory policy so requires."

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...

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62 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
    ...(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. Silver Cross Hosp. of Joliet, Ill., 340 F.Supp. 125 (N.D.Ill.1972); Johnson v. Wilkinson, 315 F.Supp. 773 (W.D.M......
  • Sullivan v. Murphy, No. 71-1632.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 16, 1973
    ...as much as suggested this result. See 283 A.2d n. 18 at 21. 77 See Anderson v. Haas, 341 F.2d 497 (3d Cir., 1965) ; Pritchard v. Smith, 289 F.2d 153 (8th Cir., 1961) ; Beyer v. Werner, 299 F.Supp. 967 (E.D.N.Y., 1969) ; 1A J. Moore, Federal Practice ¶s 0.323 1, 3, 0.328 (1971) ; C. Wright, ......
  • Zatuchni v. Secretary of Health and Human Services, No. 2007-5034.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • February 12, 2008
    ...survival of claims . . . the question of survival or not must be judged in accordance with the rule at common law."); Pritchard v. Smith, 289 F.2d 153, 155 (8th Cir.1961) (when a statute "does not deal expressly with the question of survivorship . . . `it is for the federal courts to fashio......
  • Scott v. University of Delaware, No. 78-2365
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 6, 1979
    ...See 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). The Delaware survival statute, set forth at Del. Code Ann., Chapt. 10, §§ 3701-08, would permit the continuation of an action for......
  • Request a trial to view additional results
62 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
    ...(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. Silver Cross Hosp. of Joliet, Ill., 340 F.Supp. 125 (N.D.Ill.1972); Johnson v. Wilkinson, 315 F.Supp. 773 (W.D.M......
  • Sullivan v. Murphy, No. 71-1632.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 16, 1973
    ...as much as suggested this result. See 283 A.2d n. 18 at 21. 77 See Anderson v. Haas, 341 F.2d 497 (3d Cir., 1965) ; Pritchard v. Smith, 289 F.2d 153 (8th Cir., 1961) ; Beyer v. Werner, 299 F.Supp. 967 (E.D.N.Y., 1969) ; 1A J. Moore, Federal Practice ¶s 0.323 1, 3, 0.328 (1971) ; C. Wright, ......
  • Zatuchni v. Secretary of Health and Human Services, No. 2007-5034.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • February 12, 2008
    ...survival of claims . . . the question of survival or not must be judged in accordance with the rule at common law."); Pritchard v. Smith, 289 F.2d 153, 155 (8th Cir.1961) (when a statute "does not deal expressly with the question of survivorship . . . `it is for the federal courts to fashio......
  • Scott v. University of Delaware, No. 78-2365
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 6, 1979
    ...See 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). The Delaware survival statute, set forth at Del. Code Ann., Chapt. 10, §§ 3701-08, would permit the continuation of an action for......
  • Request a trial to view additional results

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