Broadway v. Culpepper Brief of Appellees

    In t h e

Intteft i ’tatHi tourt irl Apprals
F ob t h e  F i f t h  C ir c u it  

No. 18,620

H a t t ie  B r a z ie r ,
Appellant,

W . B . C h e r r y , et al.,
Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF GEORGIA

APPELLANT’S REPLY BRIEF

N o r m a n  C . A m a k e r  
J a m e s  M . N a b r it  III

D o n a l d  L. I I o l l o w e l l  
859% Hunter Street, N. W. 

Atlanta, Georgia

C . B . K in g

221 South Jackson Street 
Albany, Georgia

J a c k  G r e e n b e r g  
T h u r g o o d  M a r s h a l l  

10 Columbus Circle 
New York 19, N. Y.

Attorneys for Appellees

Of Counsel



I N D E X

A r g u m e n t

I—Lately Decided Cases..............................................  1

II—“ There Is No Federal General Common Law” 5

III— Legislative History .............................................  8

IV— Relief Against the Bonding Company...........  15

Conclusion...........................................................................  17

Table of Cases

Avelone v. St. John’s Hospital, 165 Ohio State 467, 135 
N. E. 2d 410 (1956) ...................................................... 8

Bing v. Thunig, 2 N. Y. 2d 656,143 N. E. 2d 3 (1957) .... 8

Citizens Bank of Colquitt v. American Surety Company
of New York, 174 Ga. 852 ........................... ............ . 16

Clearfield Trust Co. v. United States, 318 U. S. 363 .......  6
Collins v. Hardyman, 341 U. S. 651..................................  8
Cox v. Roth, 348 U. S. 207 .................................................. 7

D’Oench Duhme & Co. v. Federal Deposit Ins. Corp.,
315 U. S. 447....... ...................... .......................................  6

Dyer v. Kazuliesa Abe, D. C. Hawaii, 138 F. Supp. 220 3

Erie Railroad Co. v. Tompkins, 304 U. S. 6 4 ...............3, 5, 7
Francis v. Crafts, 203 F. 2d 809 ................................ .....  9
Francis v. Lyman, 108 F. Supp. 884 ........ ......................  8
Francis v. Southern Pacific Co., 333 U. S. 445 (1948) .... 6

PAGE



11

Hague v. C. I. 0., 307 U. S. 496 ......................................  8
Hargrove v. Town of Cocoa Beach, 96 So. 2d 130 (Fla.

1957) .... ......... ........ ....... .......... ................................. .....  8
The Harrisburg v. Rickards, 119 H. S. 199, 30 L. Ed.

358 (1886) ................................................................. .......  5

Jackson County v. United States, 308 U. S. 343 .......... . 6
Jefferson v. Hartley, 81 Ga. 716...................................... 16
Just v. Chambers, 312 U. S. 383 ......................................  4

McPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E.
1050 (1916) ................ ............. ......................................  8

Molitor v. Kan eland Community Unit District No. 302,
18 111. 2d 11, 163 N. E. 2d 89 (1959) ..........................  8

Monroe v. Pape,------ U. S .------- , 5 L. Ed. 2d 492 ...........  1, 9

Panama R. Co. v. Rock, 266 U. S. 209, 69 L. Ed. 250
(1924) ...... ........... ............................................................. 5

Powell v. Fidelity and Deposit Company of Maryland,
45 Ga. App. 8 8 ....................... .........................................  16

Pritchard v. Smith, 29 U. S. L. Week 2534 (8th Cir.,
May 16, 1961) ............ .....................................................  2,7

Smith v. Glen Falls Indemnity Co., 71 Ga. App. 697 .... 16

Van Beeck v. Sabine Towing Co., 300 U. S. 342 ........... 4

Walker v. Whittle, 83 Ga. App. 445..... ............................. 16

S t a t u t e s

Federal Rules of Civil Procedure 25, §a (l) ......... . 4

42 U. S. C. §1981...................................................... . 13

42 U. S. C. §1983 .........................................................  2, 3

PAGE



Ill

42 U. S. C. §1985(3) ......................... ........................  9

42 U. S. C. §1986 .......................................................... 9

42 U. S. C. §1988 .................................. 3, 6,13,14,15,16

Cong. Globe, 39tli Congress, 1st Session, App. pp. 
315-16................................ ...................... ................ . 12

Cong. Globe, 39th Congress, 1st Session, p. 474 ....14,15

Cong. Globe, 41st Congress, Session II, App. p. 662 13

Cong. Globe, 42nd Congress, 1st Session ............... 8

Act of April 9, 1866 ..................................................12,14

Act of May 31, 1870, §16..... .................................... 13,14

Georgia Code Ann., §89-418......................................  15

O t h e b  A u t h o b it y

PAGE

13 NACCA L. J. 188,189 7



In t h e

luitrfc Butts (Eimrt nf Appeals
F ob t h e  F i f t h  C ir c u it

No. 18,620

H a t t ie  B r a z ie r ,

-v.—
Appellant,

W. B. C h e r r y , et al.,
Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF GEORGIA

APPELLANT’S REPLY BRIEF

I

Lately Decided Cases

At the outset appellant respectfully calls the Court’s at­
tention to two lately decided cases, so recent that they 
could not be incorporated in appellant’s brief:

1. Monroe v. Pape, ------  U. S. ------ , 5 L. ed. 2d 492.
Monroe v. Pape confirms appellant’s assertion in the prin­
cipal brief that if decedent had merely been beaten and 
not killed there would have been a cause of action in the 
federal courts. (Brief, pp. 5-6). The complaint there al­
leged that police officers broke into petitioners’ home, 
abused them, destroyed property, took one of the peti­
tioners to the police station where he was detained on 
open charges for ten hours, failed to take him before a 
magistrate and finally released him, all without a search



2

or arrest warrant. Respondents had acted under color of 
the statutes, ordinances, regulations, customs and usages 
of the State of Illinois, City of Chicago. The Supreme 
Court had before it the question of whether petitioner 
stated a cause of action under 42 U. S. C., Section 1983 
5 L. ed. 2d at 495, note 2. The Court held that a cause of 
action was stated. The opinion contains a lengthy canvass 
of the legislative history. Among the conclusions which 
the Court drew from this history were:

“ The debates are long and extensive. It is abun­
dantly clear that one reason the legislation was passed 
was to afford a federal right in federal courts because 
by 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 Four­
teenth Amendment might be denied by the state 
agencies.” 5 L. ed. 2d at 501.

# # #
“ Although the legislation was enacted because of 

the conditions that existed in the South at that time, 
it is cast in general language and is as applicable to 
Illinois as is it to the States whose names were men­
tioned over and again in the debates. 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. Hence 
the fact that Illinois by its constitution and laws out­
laws searches and seizures is no barrier to the present 
suit in the federal court.” 5 L. ed. 2d at 502-503.

2. The other case is Pritchard v. Smith, 29 U. S. L. Week 
2534, May 16, 1961, decided by the Court of Appeals for 
the Eighth Circuit, April 26, 1961. That case involved



3

precisely the question at issue here: Does a cause of 
action under the Civil Rights Act survive? The Court of 
Appeals for the Eighth Circuit held that it does, relying 
chiefly upon 42 IT. S. C. §1988. The excerpts contained 
in U. S. Law Week appropriately may be quoted in full:

“ This action is brought under R. S. 1979, 42 U. S. C. 
1983.

[Text] “ ‘We fully agree with the trial court’s con­
clusion that this is an action arising under federal 
statute and that consequently federal law governs. 
In such a situation, the rule of Erie v. Tompkins, 
304 U. S. 64, does not apply.’ ”

“ In cases arising under federal law, federal courts 
have in some instances determined the rights of the 
parties upon the basis of state law.

“ Under the provisions of R. S. 722, 42 U. S. C. 1988, 
“ ‘The jurisdiction in civil and criminal matters con­
ferred on the district courts by the provisions of this 
chapter * * * for the protection of all persons in the 
United States in their civil rights, and for their vin­
dication, shall be exercised and enforced in conformity 
with the laws of the United States, so far as such 
laws are suitable to carry the same into effect; but 
in all cases where they are not adapted to the object, 
or are deficient in the provisions necessary to furnish 
suitable remedies,’ ” the law of the state wherein the 
court having jurisdiction of such civil or criminal 
case is held shall govern.

“ This statute, so far as it pertains to civil actions, 
has had little judicial attention. Dyer v. Kazuhesa 
Abe, D. C. Hawaii, 138 F. Supp. 220, reversed on 
other grounds, 256 F. 2d 728, states summarily with­
out explanation that the statute relates to procedure, 
not jurisdiction.



4

“ ‘We cannot accept the view that Section 1988 is 
procedural only. The substitution procedure is spe­
cifically prescribed in FRCP 25. Section a (l)  thereof 
makes the substitution procedure available only in 
situations where the cause of action is not extinguished 
by death.

“ It appears that Congress by its language in Section 
1988 intended to enlarge the civil right remedy where 
the state law is not inconsistent with the laws of the 
United States.

“ Since no federal statute specifically deals with the 
substantive issue of survival, in the situation here 
presented no inconsistency results from the applica­
tion of Arkansas’ survival law, which permits survival 
of tort suits except libel and slander. It is readily 
apparent from Just v. Chambers, 312 U. S. 383; Van 
Beeck v. Sabine Towing Co., 300 U. S. 342; and Cox 
v. Roth, 348 U. S. 207, that the Supreme Court did 
not consider the granting of the right of survival as 
being inconsistent with any federal law or policy. 
Each of said cases shows a strong trend to construe 
statutes liberally to allow the survival of tort actions.

[Text] “ ‘Moreover, if we have given Section 1988 
a broader interpretation than it is entitled to, wre be­
lieve that the cases heretofore cited would justify 
the conclusion that this is the type of a situation 
where a court would be entitled to look to state law 
to determine the survival issue. There appears to be 
no well defined or established federal common law as 
to the survival of tort actions for the vindication of 
personal rights.’ ”—Van Oosterhout, J.1

1 The District Court opinion apparently is unreported. Appellant is in­
formed, however, that Lauderdale v. Smith, 186 i\ Supp. 958 (E. D. Ark. 
1960) is a companion case.



5

“There Is No Federal General Common Law”

Appellees’ brief and the decision of the Court below rest 
entirely on the proposition that under the common law no 
cause of action arises for the death of a human being:

“ It is settled that at common law no private cause of 
action arises from the death of a human being . . . The 
right of action, both in this country and in England, 
depends wholly upon statutory authority.” Panama 
B. Co. v. Rock, 266 U. S. 209, 69 L. Ed. 250 (1924).

“ ‘It is a singular fact that by the common law the 
greatest injury which one man can inflict on another, 
the taking of his life, is without a private remedy.’ ” 
The Harrisburg v. Rickards, 119 U. S. 199, 30 L. Ed. 
358 (1886) (E. p. 29).

Or, as the argument in appellees’ brief asserts:

“ It is a general rule of the common law that no action 
will lie to recover damages for the death of a human 
being occasioned by the negligent, or other wrongful, 
act of another, however close may be the relation be­
tween the deceased and the plaintiff and however 
clearly the death may involve pecuniary loss to a plain­
tiff.” (Brief of Appellees, p. 7.)

The underlying fallacy of this position with respect to a 
cause of action asserted under a federal statute in the 
federal courts is that, to quote Mr. Justice Brandeis in 
Erie Railroad Co. v. Tompkins, 304 U. S. 64, 78 (1938) 
“There is no federal general common law.” (Emphasis 
supplied.)

With respect to causes of action arising under federal 
statutes the federal courts regularly must declare federal

II



6

judge made rules appropriate to the problems with which 
they are concerned in the manner in which courts, from time 
immemorial, have ascertained and pronounced law. See, 
e.g., Clearfield Trust Co. v. United States, 318 TJ. S. 363 
(1943); Francis v. Southern Pacific Co., 333 U. S. 445 
(1948). This is not a federal general common law, but a 
body of federal law appropriate to particular problems and 
areas of jurisprudence. “ The concrete problem is to deter­
mine materials out of which the judicial rule . . . should 
be formulated.” Jackson County v. United States, 308 U. S. 
343, 350. These materials, as Mr. Justice Jackson wrote in 
D’Oench Duhme & Co. v. Federal Deposit Ins. Corp., 315 
U. S. 447, 465, 470, are “ found in the Federal Constitution, 
statutes, or common law. Federal common law implements 
the Federal Constitution and statutes, and is conditioned 
by them. Within these limits, Federal courts are free to 
apply the traditional common-law technique of decision and 
to draw upon all the sources of the common law in cases 
such as the present.”

This is a far cry from embracing an ancient English rule 
and being bound by it inexorably.

What are the “materials out of which the judicial rule” 
in this case may be fashioned!

1. The civil rights statutes and the policy they seek to 
effect.

2. Indications in Federal law of sources to which Con­
gress and the courts desire reference to be made.

a. Foremost among these is 42 U. S. C. A. §1988,2 which, 
as our principal brief indicates, has been developed specifi­

2 Appellee’s brief suggests that 42 U. S. C. {1988 was not specifically 
enumerated in the complaint and therefore, apparently, is not before the 
Court (Br. pp. 5-6). But Rule 8, Federal Rules of Civil Procedure states 
that “ a pleading . . . shall contain (1) a short and plain statement of the



7

cally for a situation such as that now at bar. It instructs 
the courts that where federal law leaves a verbal hiatus in 
the Civil Eights Acts, state law should bridge the gap. 
“ [I]n  all cases where they [the Civil Eights Acts] are not 
adapted to the object, or are deficient in the provision neces­
sary to furnish suitable remedies and punish offenses 
against law, the common law as modified and changed by 
the Constitution and statutes of the State wherein the 
court having jurisdiction . . . shall be extended to and 
govern...  .” See Pritchard v. Smith, supra.

State law, as indicated in our principal brief, recognizes 
survival and wrongful death as “ suitable remedies” in a 
case such as this.

b. Erie R.R. Co. v. Tompkins, 304 U. S. 64. Although the 
instant suit is a non-diversity case and the Erie rule cer­
tainly has no independent force here, where state law is 
corroborative of federal policy an additional reason surely 
exists for following federal policy.

3. The general common law. This, appellees assert, 
militates against finding that a cause of action has been 
stated. But the common law policy which appellees proffer 
to this Court has been repudiated by every common law 
jurisdiction. While it may have been the common law 
centuries ago, appellants respectfully submit, along with 
Dean Eoscoe Pound, see 13 NACCA L. J. 188, 189, and 
Cox v. Roth, 348 U. S. 207, 210, that it no longer may be 
viewed as the common law. It is not unusual for the courts

grounds upon which the court’s jurisdiction depends . . . ” As Patten v. 
Dennis, 134 F. 2d 137, 138 (9th Cir. 1943) held:

“ The requirements of a complaint may be stated, in different words, 
as being a statement of facts showing (1) the jurisdiction o f the 
court . . . ”

See also Bitchie v. Atlantic Defining Co., 7 F. B. D. 671 (D. N. J. 1947). 
The instant complaint obviously asserts such facts.



8

which, after all, created common law rules, to change them 
when they are demonstrably inappropriate to changed con­
ditions, social and moral views. Thus, has the law of negli­
gence in the absence of privity, been changed by the courts. 
E.g., McPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 
1050 (1916). Likewise has the rule of sovereign immunity 
been overturned. Molitor v. Kaneland Community Unit 
District, No. 302, 18 111. 2d 11, 163 N. E. 2d 89 (1959); 
Hargrove v. Town of Cocoa Beach, 96 So. 2d 130 (Fla. 
1957). Similarly has the rule of charitable immunity been 
altered. Bing v. Thunig, 2 N. Y. 2d 656, 143 N. E. 2d 3 
(1957); Avelone v. St. John’s Hospital, 165 Ohio St. 467, 135 
N. E. 2d 410 (1956).

These examples could be multiplied. But even if the 
repudiated rule which holds that there is no cause of action 
for death were to be recognized as still viable, it is not at 
all binding upon this Court, but merely one of several from 
which it may choose. Under the circumstances of this case, 
with federal law pointing in exactly the opposite direction, 
such a choice would be singularly inappropriate.

Ill

Legislative History

Moreover, the legislative history clearly demonstrates 
that there is a federal cause of action for the taking of this 
life.

The Act of April 20, 1871 had a single unswerving pur­
pose: to provide a remedy under Federal law for all per­
sons deprived of the protections due to them as citizens 
of the United States by virtue of the Fourteenth Amend­
ment. See Congressional Globe, 42 Cong., 1st Session 
passim. Hague v. C. I. O., 307 U. S. 496, 509-510. Collins 
v. Hardyman, 341 U. S. 651, 661, Francis v. Lyman, 108



9

F. Supp. 884, aff’d sub nom. Francis v. Crafts, 203 F. 2d 
809; cert. den. 346 U. S. 835. And see particularly Monroe 
v. Pape, supra. The sections of the Act were designed to 
operate as an integrated plan for the protection of all 
such persons. Particularly §§6 (42 U. S. C. 1986) and 2 
(42 TJ. S. C. 1985) (3), must be read in pari materia. Sec­
tion 6 refers to acts proscribed in §23 in such a way as to 
dispel any doubt that the remedy granted was not intended 
to dissolve with death. The sections deal with two separate 
wrongs: the wrong of action amounting to conspiracy (§2) 
and of inaction, or neglect or refusal to act (§6).

Representative Poland, a member of the second Joint 
House Senate Conference Committee which proposed the 
substitute for the Sherman Amendment which subsequently 
became Section 6 of the Act, in reporting the consensus 
of the Conference Committee, said that the House had 
decided that Congress had no Constitutional power to im­
pose any obligations upon county and town organizations 
as would have been done if the Sherman Amendment had 
been enacted into law. He then continued

3 “ See. 6. That any person or persons, having knowledge that any of 
the wrongs conspired to he done and mentioned in the second section of 
this act are about to be committed, and having power to prevent or aid in 
preventing the ' same, shall neglect or refuse so to do, and such wrongful 
act shall be committed, such person or persons shall be liable to the person 
injured, or his legal representatives, for all damages caused by any such 
wrongful act which such first-named person or persons by reasonable diligence 
could have prevented; and such damages may be recovered in an action on 
the case in the proper circuit court of the United States, and any number 
of persons guilty of such wrongful neglect or refusal may be joined as 
defendants in such action: Provided, That such action shall be commenced 
within one year after such cause of action shall have accrued; and if the 
death of any person shall be caused by any such wrongful act and neglect, 
the legal representatives of such deceased person shall have such action 
therefor, and may recover not exceeding five thousand dollars damages therein, 
for the benefit of the widow of such deceased person, if  any there be, or if  
there be no widow, for the benefit of the next of kin of such deceased person.” 
(Emphasis added.)



1 0

At the same time . . . there was a disposition on the 
part of the House, in onr judgment, to reach every­
body who was connected either directly or indirectly, 
positively or negatively, with the commission of any 
of these offenses and wrongs, and we would go as far 
as they chose to go in punishment or imposing any 
liability upon any man who shall fail to do his duty 
in relation to the suppression of those wrongs. The 
result was this Section which we have reported in 
lieu of the Sherman Amendment.

(Congressional Globe, Ibid., pg. 804) (emphasis sup­
plied).

Representative Shellabarger, who managed the bill in 
the House of Representatives also indicated the reach of 
§6 when he said on the floor of the House,

Now note, the Sherman proposition does not go to 
any other wrong than those of riots. This [referring 
to Section 6] reaches every class of wrongs and is 
much broader in its reach. (Id.)

The remarks of Senator Edmunds who sponsored the 
legislation in the Senate are also indicative of the intend­
ment of this Section:

Every citizen in the vicinity where any such out­
rages as are mentioned in the Second Section of this 
bill, which I need not now describe, are likely to be 
perpetrated, he having knowledge of any such inten­
tion or organization, is made a peace officer, and it is 
made his bounden duty as a citizen of the United 
States to render positive and affirmative assistance in 
protecting the life and property of his fellow citizens 
in that neigborhood against unlawful aggression; and 
if, having this knowledge and having power to assist 
by any reasonable means in preventing it or putting



11

it down or resisting it, he fails to do so he makes 
himself an accessory or rather a principal in the out­
rage itself . . .”

(Cong. Globe, Ibid., p. 820.)

Thus the purpose of §6 was to bring within the scope 
of the remedy provided under the Act every class of 
wrongdoer responsible in any way for the commission of 
the wrongful acts proscribed in §2. However, respecting 
those persons injured by the wrongful acts detailed in §2, 
just one remedy was provided. And that remedy was given 
in express terms to the legal representative for the benefit 
of the widow4 in the event of the death of the injured 
party, leaving no doubt that the language of §6 in Mr. 
Shellabarger’s terms was intended to “ operate back” upon 
§ 2.

The first appearance of the idea of allowing a cause of 
action to survive the death of the injured party occurred 
in the amendment offered by Senator Sherman of Ohio. 
The substitute for the Sherman Amendment, eventually 
agreed to by both houses, carried over the idea of sur­
vival. Whatever the reason, it is clear that Congress did 
intend to change the common law rule and was fully aware 
that it was doing so. It did not include the language of 
survival in §2 because, apparently, it felt that there could 
be no doubt that its remedy of §6 was identical to the 
remedy specified in §2.

4 Mr. Butler: “Let us see what remedy you give in a ease like that of 
Dickinson, who was shot in Georgia.”

A Member: “ No, in Florida.”
Mr. Butler: “ Yes, in Florida, not in Georgia. I beg Georgia’s pardon. 

What is the remedy in that case? His wife is to go down there and sue. 
Whom is she to sue? She is to find out first who did the deed; then who 
knew it was to be done and did not tell o f or aid in preventing it.”

(Remarks of Senator Butler of Massachusetts. Cong. Globe, Ibid., p. 807)



12

The language of Representative Shellabarger quoted at 
page 7-8 of appellant’s original brief is unquestionably 
the clearest statement of congressional intent respecting 
the scope of the remedy created by §6: “ I think this 
Amendment will give a right of recovery in all cases, 
either under the Second Section or under this Section 
where death ensues.”

Appellees argue that Mr. Shellabarger was uncertain 
as to whether his interpretation of the Amendment, which 
is now codified as 42 U. S. C., 1986, would be sustained by 
the courts rather than by the legislature. Mr. Shellabarger 
was speaking as a legislator to his “ fellow members” in 
the Congress; he was urging the adoption of legislation. 
His views were indeed supported by the acceptance of the 
Second Conference Committee report. He was in fact 
“ sustained” by his “ fellow members” in the Congress.

The legislative history of §1988 demonstrates its role in 
a coordinated legislative scheme which points to recovery 
in this suit. §1988 was originally enacted as a means of 
enforcing substantive rights created concurrently as part 
of a single legislative scheme designed “ to protect all 
persons in the United States in their Civil Rights and 
furnish the means of their vindication.” (Act of April 9, 
1866. Congressional Globe, 39th Congress, 1st Session, 
Appendix, p. 315.) The purpose of this statute—a purpose 
shared by all of the so-called Civil Rights Acts—was to 
declare the rights of Negroes and to furnish “ suitable 
remedies” for their protection. The declaration or “ crea­
tion” of substantive rights was contained in Section 1 of 
the Act of 18665 * which in conjunction with Section 16 of

5 Chap. X X X I.—An Act to protect all persons in the United States in 
their civil rights, and furnish the means of their vindication.

“ Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, That all persons born 
in the United States and not subject to any foreign power, excluding 
Indians not taxed, are hereby declared to be citizens of the United States; 
and such citizens, of every race and color, without regard to any previous



13

the Act of May 31, 18706 (an act which re-enacted in §18 
thereof the Act of 1866) is the present 42 U. S. C. §1981. 
§1988 of the Code was originally §3 of the Act of 18667 and

condition of slavery or involuntary servitude, except as a punishment 
for crime whereof the party shall have been duly convicted, shall have 
the same right, in every state and territory in the United States, to make 
and enforce contracts, to sue, he parties, and give evidence, to inherit, 
purchase, lease, sell, hold, and convey real and personal property, and 
to full and equal benefit o f all laws and proceedings for the security of 
person and property, as is enjoyed by white citizens, and shall be subject 
to like punishment, pains, and penalties, and to none other, any law, 
statute, ordinance, regulation, or custom, to the contrary notwithstanding.” 
(Congressional Globe, 39th Congress, Session I, App. pp. 315-16. Em­
phasis supplied.)

6 “ Sec. 16. And be it further enacted, that all persons within the juris­
diction of the United States shall have the same right in every State and 
Territory in the United States to make and enforce contracts, to sue, be 
parties, give evidence, and to the full and equal benefit of all laws and pro­
ceedings for the security of person and property as is enjoyed by white 
citizens, and shall be subject to like punishment, pains, penalties, taxes, 
licenses and exactions of every kind, and none other, any law, statute, ordi­
nance, regulation, or custom to the contrary notwithstanding. No tax or 
charge shall be imposed or enforced by any State upon any person im­
migrating thereto from a foreign country which is not equally imposed and 
enforced upon every person immigrating to such State from any other 
foreign country; and any law of any State in conflict with this provision 
is hereby declared null and void.”

(Congressional Globe, 41st Congress, Session II, App. p. 662. Emphasis 
supplied.) A comparison of the italicized language of this Section with the 
italicized language of See. 1 of the Act of 1866, Note 3, supra, reveals their 
close identity.

7 “ See. 3. And be it further enacted, That the district courts of the 
United States, within their respective districts, shall have, exclusively of 
the courts of the several States, cognizance of all crimes and offenses com­
mitted against the provisions of this act, and also, concurrently with the 
circuit courts of the United States, of all causes, civil and criminal, affecting 
persons who are denied or cannot enforce in the courts or judicial tribunals 
of the State or locality where they may be any of the rights secured to 
them by the first section of this act; and if  any suit or prosecution, civil or 
criminal, has been or shall be commenced in any State court, against any 
such person, for any cause whatsoever, or against any officer, civil or military, 
or other person, for any arrest or imprisonment, trespasses, or wrongs done 
or committed by virtue or under color o f authority derived from this act 
or the act establishing a Bureau for the Belief of Freedmen and Befugees, 
and all acts amendatory thereof, or for refusing to do any act upon the



14

was enacted to provide “ the necessary machinery to give 
effect to what are declared to be the rights of all persons 
in the first section” (Sen. Trumbull, Chairman of the Senate 
Comm, on the Judiciary in his introduction of the bill on 
the Senate floor. Cong. Globe, 39th Congress, 1st Sess., 
p. 474). Among the rights so declared in Section 1 of the 
Act (and again in §16 of the Act of May 31, 1870 which 
provided for the enforcement of Section 16 according to 
the provisions of the Act of April 9, 1866) was the right 
“ to the full and equal benefit of all laws and proceedings 
for the security of persons and property as is enjoyed by 
white citizens . . . ”

Because of the essential nexus between these two Civil 
Bights Acts, §1988 of 42 U. S. C. is a provision designed 
to enforce the equal rights under law secured by 1981 and 
as such, its enforcement provisions, which lodge jurisdic­
tion with the federal courts and which provide for reference 
to state laws as a means of exercising that jurisdiction 
whenever federal law is “not adapted to the object” or is 
“ deficient” are provisions which do in fact relate to sub­
stantive federal rights created by Congress. Congress in­

ground that it would be inconsistent with this act, such defendant shall 
have the right to remove such cause for trial to the proper district or circuit 
court in the manner prescribed by the ‘act relating to habeas corpus and 
regulating judicial proceedings in certain eases,’ approved March three, 
eighteen hundred and sixty-three, and all acts amendatory thereof. The 
jurisdiction in civil and criminal matters hereby conferred on the district 
and circuit courts of the United States shall be exercised and enforced in 
conformity with the laws of the United States, so far as such laws are 
suitable to carry the same into effect; but in all cases where such laws are 
not adapted to the object, or are deficient in the provisions necessary to fur­
nish suitable remedies and punish offenses against law, the common law, as 
modified and changed by the constitution and statutes of the State wherein 
the court having jurisdiction of the cause, civil or criminal, is held, so far 
as the same is not inconsistent with the Constitution and laws of the United 
States, shall be extended to and govern said courts in the trial and disposi­
tion of such cause, and, if  of a criminal nature, in the infliction of punish­
ment on the party found guilty.”



15

tended the federal courts in every instance in which it 
purported to exercise the jurisdiction conferred by §3 of 
the Act of 1866 (§1988) to first look to federal law to see 
if the case is provided for therein, to see if that law grants 
a remedy; if not, then resort to the applicable state law 
must be made.

“ There is very little importance in the general declaration 
of abstract truths and principles unless they can be carried 
into effect, unless the persons who are to be affected by 
them have some means of availing themselves of their 
benefits.”  (Sen. Trumbull, Cong. Globe, 39th Congress, 
1st Session, p. 474.)

IV

Relief Against the Bonding Company

Appellant has a remedy against the bonding company 
for the wrongful acts of the Sheriff under Georgia law by 
virtue of the provisions of 42 U. S. C. §1988. The court be­
low dismissed appellant’s complaint against the defendant 
bonding company holding that diversity jurisdiction was 
lacking and that even if there were complete diversity as 
between appellant and appellees, the jurisdictional amount 
requirement in diversity actions was not met.

However, as demonstrated above, pursuant to 42 U. S. C. 
§1988, appellant has a remedy under “ the common law, as 
modified and changed by the Constitution and Statutes” 
of Georgia for the violation of federally protected rights. 
Consequently, the court below had civil rights jurisdiction 
over the claim against the bonding company without refer­
ence to the amount of the surety’s liability on the bond.

Under Georgia law, there is no question of the surety’s 
liability for the wrongful acts of the Sheriff. Georgia Code 
Ann. §89-418 provides as follows:



16

Conditions of liability—Every official bond executed 
under this Code is obligatory on the principal and 
sureties thereon—

*  *  #  #  #

4. For the use and benefit of every person who is 
injured, either by any wrongful act committed under 
color of his office or by his failure to perform, or by 
the improper or neglectful performance of those duties 
imposed by law.

That section of the Georgia Code has been construed by 
the highest court of the State to fix liability upon a surety 
upon a sheriff’s official bond for damages resulting from an 
illegal homicide by the sheriff committed while acting under 
color of office. Smith v. Glen Falls Indemnity Co., 71 Ga. 
App. 697. To the same effect is Powell v. Fidelity and De­
posit Company of Maryland, 45 Ga. App. 88. The Supreme 
Court of Georgia has held that preliminary recovery against 
the sheriff for his wrongful acts is not a prerequisite to suit 
against the surety on the bond, Jefferson v. Hartley, 81 Ga. 
716, and the surety may be sued jointly with the wrongdoer. 
Walker v. Whittle, 83 Ga. App. 445. The surety is charge­
able with knowledge of the law and is held to have executed 
official bonds with reference thereto. Citizens Bank of Col­
quitt v. American Surety Company of New York, 174 Ga. 
852.

Clearly then, appellant here has a remedy under the 
laws of Georgia against the defendant bonding company 
and under 42 U. S. C. §1988, these laws “ shall be extended 
to and govern the [federal] courts in the trial and dis­
position of the cause” at bar.



17

CONCLUSION

W h e r e f o r e , for the reasons given above, appellant 
respectfully prays that the judgment of the Court below 
be reversed.

Respectfully submitted,

D o n a l d  L. H o l l o w e l l  
8591/2 Hunter Street, N. W. 

Atlanta, Georgia

C. B. K in g

221 South Jackson Street 
Albany, Georgia

J a c k  G r e e n b e r g  
T htjrgood  M a r s h a l l  

10 Columbus Circle 
New York 19, N. Y.

Attorneys for Appellees

N o r m a n  C. A m a k e r  
J a m e s  M. N a b r it  III 

Of Counsel



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CERTIFICATE OF SERVICE

This is to certify that on the 19th day of May, 1961, I 
served copies of this brief on Charles J. Bloch, Esq. and 
Ellsworth Hall, Jr., Esq. by mailing same to them by air 
mail prepaid addressed to their offices at 520 First Na­
tional Bank Building, Macon, Georgia.

J a c k  G r e e n b e r g



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