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United States District Court, Northern District of Illinois, E.D

December 30, 1955


The opinion of the court was delivered by: 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 held, under the common law, to survive death of the injured party. In Barnes Coal Corp. v. Retail Coal Merchants Ass'n, 4 Cir., 128 F.2d 645, 648, where it was held that an action to recover triple damages for violation of the Sherman Anti-Trust Act would survive the death of a person by or against whom it might have been brought, the court said:

    "* * * it is well settled that, with respect to a
  cause of action created by act of Congress, the
  question of survival is not one of procedure but one
  which depends `on the substance of the cause of

In Bowles v. Farmers Nat. Bank, 6 Cir., 147 F.2d 425, at page 430, it was said:

    "The question of the survival of the action, which
  did not exist at common law and is purely the
  creature of congressional enactment, is not governed
  by state statutes of survival. In the absence of an
  Act of Congress, the federal courts are entitled to
  apply the proper rules of federal law under their own

The question of survival of actions under Section 1983, upon which this suit is based, has apparently never been adjudicated.

Counsel have cited no Federal statute decisive of the question, and the court finds none clearly so decisive.*fn*

It is provided by Section 1983 that the action may be brought by the "party injured". The object of Section 1983 is to protect persons against misuse of power possessed by virtue of state law and made possible because the wrongdoer is clothed with authority of state law. It would seem inconsistent with the purpose of the act to say that a State officer should be responsible if he only injured a person and not responsible to anyone if he killed the person. As plaintiff points out, such a holding would encourage officers not to stop after they had injured but to be certain to kill. It may be noted, too, that Congress has by Section 1988 of Title 42 (quoted below) stated the policy that "suitable remedies" shall be extended for the "protection of all persons in the United States in their civil rights, and for their vindication". In Nordquist v. U.S. Trust Co., 2 Cir., 188 F.2d 776, 778, opinion by Mr. Augustus N. Hand, C.J., the court said:

    "Where the frustration of the clear purposes of the
  Act is so patently the result of a failure to foresee
  the consequences of a seldom recurring situation, the
  courts in this strictly limited sphere have never
  been inclined to let the plaintiff go
  remediless. * * * We, therefore, read into the Jones
  Act the omitted survival proviso and remand the cause
  for a trial upon the merits."

And in VanBeeck v. Sabine Towing Co., 300 U.S. 342, at page 350, 57 S.Ct. 452, at page 456, 81 L.Ed. 685, Mr. Justice Cardozo states:

    "Death statutes have their roots in dissatisfaction
  with the archaisms of the law which have been traced
  to their origin in the course of this opinion. It
  would be a misfortune if a narrow or grudging process
  of construction were to exemplify and perpetuate the
  very evils to be remedied. There are times when
  uncertain words are to be wrought into consistency
  and unity with a legislative policy which is itself a
  source of law, a new generative

  impulse transmitted to the legal system. `The
  Legislature has the power to decide what the policy
  of the law shall be, and if it has intimated its
  will, however indirectly, that will should be
  recognized and obeyed.' Its intimation is clear
  enough in the statutes now before us that their
  effects shall not be stifled, without the warrant of
  clear necessity, by the perpetuation of a policy
  which now has had its day."

The court concludes that, in order to carry out the purposes of the statute and to prevent an injustice which would arise if plaintiff were to go remediless, it should construe the words "party injured" to include the administratrix of the estate of one who was killed in violation of Section 1983.

The motion to dismiss the complaint will be overruled and denied, and an order to that effect has this day been made.

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