# Hattie Brazier v. W. B. Cherry

> Court of Appeals for the Fifth Circuit · July 28, 1961 · 293 F.2d 401

URL: https://www.frixlaw.com/law-library/cases/9448095

## Case

- **Full name:** Hattie BRAZIER, Appellant, v. W. B. CHERRY Et Al., Appellees
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** July 28, 1961
- **Citations:** 293 F.2d 401
- **Precedential status:** Published
- **Opinion:** Dissent by De Vane
- **Judges:** Jones, Brown, De Vane
- **Cited by:** 205 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9448095

## How later opinions describe it (automated extraction)

- holding that § 1983 is deficient in not providing for survivorship and looking to Georgia’s survivorship and *1046 ■wrongful death statutes to see if civil rights claim survives
- recognizing that because “claims for injury to the person die with the victim” under common law, any “amelioration of the harshness of this principle must come from legislation”
- holding that § 1983 is deficient in not providing for survivorship and looking to Georgia's survivorship and wrongful death statutes to see if civil rights claim survives
- recognizing that § 1983 does “not expressly refer to actions for death or the survival of claims arising from civil rights violations”
- holding that Georgia’s wrongful death and survival statutes were incorporated into federal law under 42 U.S.C. § 1988

## Opinion text

DE VANE, District Judge
(dissenting).
Convinced as I am that District Judge Bootle decided the issues in this case correctly, I am compelled to dissent from the opinion of Circuit Court Judge BROWN, Judge Bootle passed directly upon every issue submitted to him by the parties in the case which did not include the issue upon which this Court holds our decision must turn.
The complaint filed in the case placed no reliance whatever upon 42 U.S.C.A. § 1988 . The section was not mentioned in the pleadings. It was an afterthought on the part of counsel for appellant. However, giving full effect to this section, it cannot be held to create a cause of action in this Court based upon the Georgia Survival Statute. Such a holding by this Court constitutes nothing short of judicial legislation.
Sections 1981, 1983 and 1985(3), 42 U S.C.A. are the Civil Rights sections relied upon by plaintiff in the complaint filed herein to sustain this cause of action. Section 1981 creates no cause of action. Sections 1983 and 1985(3) create causes of action for “the party injured” and for no one else.
This is made doubly clear when consideration is given to 42 U.S.C.A. § 1986 . This section provides that not only the wrongdoers but “every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do” may be joined as defendants and sued for the wrongful acts complained of. This section specifically provides that if the death of any party be caused by such wrongful act or neglect “the legal representatives of the deceased shall have such action therefor, and may recover not exceeding $5,000 damages therein, for the benefit of the widow of the deceased, if there be one, and if there be no widow, then for the benefit of the next of kin of the deceased.”
This is the only section in the Civil Rights Act that provides for a survival action for the benefit of legal representatives of the deceased. This clearly is sufficient proof that Congress never intended to provide for the survival of a cause of action in case of death of the injured person other than that specified therein. This section goes further and provides that “no action under the provisions of this section shall be sustained which is not commenced within one year after the cause of action has accrued.”
What this Court is doing in this case is circumventing the purpose and effect of this section by holding that Section 1988 gives to the injured parties the benefit of the Georgia law with reference to survival and by so doing completely avoids the provisions of Section 1986 limiting the amount of recovery specified therein and the statute of limitations as provided therein.
What is most disturbing to me with reference to this decision is that it is further proof of the fact that federal appellate courts are engaging too much in amending the Constitution and laws where, in their opinion, there is need for the amendment, instead of interpreting the laws as given us by the Constitution and the Congress.
I would affirm.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9448095. Public record. Not legal advice.