Brazier v. Cherry Petition for Rehearing and Brief in Support Thereof

    UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT,

IN THE

No, 18,620,

HATTIE BRAZIER,
Appellant,

v,
W, B. CHERRY et al., 

Appellees,

Appeal from the United States District Court 
for the Middle District of Georgia.

PETITION FOR REHEARING
and

BRIEF IN SUPPORT THEREOF.

CHARLES J. BLOCH, 
ELLSWORTH HALL, JR., 

Attorneys for Appellees, 
Petitioners,

710 Walnut Street Building,
Macon, Georgia.

BLOCH, HALL, GROOVER & HAWKINS,
Of Counsel.

St . L oots L a w  P r in t in g  Co., Inc ., 415 N. Eighth Street. CEntral 1-4477.



INDEX.

Pa go
Petition for rehearing .......................................................  1-7

Brief for petitioners, appellees, in support of their 
motion for rehearing ..................................................... 9-21

Cases Cited.

Biddle v. Moore, 87 Ga. App. 524, 74 S. E. 2d 552.......  14
Brock v. Superior Court (Cal.), 71 P. 2d 209.............  16
Complete Auto Transit, Inc. v. Floyd, 214 Ga. 232, 104

S. E. 2d 208 ..................................................................  14
Cox v. Roth, 348 U. S. 207, 75 S. Ct. 242, 99 L. Ed. 260 18
Daly v. Stoddard, Trustee, 66 Ga. 145.........................  20
Danveger v. Staats (N. Y.), 196 N. E. 61.....................  16
Dawson v. Hamilton (Kv.), 314 S. W. 2d 535............. 16
Dearborn Ind. Inc. v. City of Dearborn (Mich.), 49

N. W. (2) 370 ..............................................................  16
Dyer v. Ivazuhisa (Hawaii), 138 F. Supp. 220 .............. 12
Fairfax v. Hunter, 7 Oranch. (IJ. S.) 603, 3 L. Ed. 453 10 
Featherstone v. Norman, 170 Ga. 370, 153 S. E. 5 8 . . . .  16
Florida Industrial Comm. v. Peninsular L. Ins. Co.

(Fla.), 10 So. 2d 793 ..................................................  16
Florida Industrial Comm. v. State (Fla.), 21 So. 2d

599 ...................................................................................  16
Franklin v. United States, 216 U. S. 559.....................  17

Holgate Bros. Co. v. Bashore (Pa.), 45 Dauph County
274 ...................................................................................  16

Holmes v. United States, 269 F. 96 ...........   17



XI

In Re Heath, 144 U. S. 921.................................................  17
In Re Opinions of the Justices (Mass.), 133 N. E. 453.. 16
In Re Stupp, 23 Fed. Gas. No. 13,563, page 296.......... 12

Just v. Chambers, 312 U. S. 383, 61 8. C't. 687, 85 L.
Ed. 903 ............................................................................  18

Kendall v. United States, 12 Pet. 524, 625...................... 17
King v. Southern Railway Company, 126 Ga. 794, 55 

S. E. 965, decided in 1906 ............................................. 13

Nostrand v. Balmer (Cal.), 335 P. 2d 17.....................  16
Rosen v. United States, 245 U. S. 467.............................  17

Santee Mills v. Query (S. C.), 115 S. E. 202.................. 16
Scaffidi v. United States (First Circuit), 37 F. 2d 203,

207 ....................................................................................12,18
Schatte et al. v. International Alliance of Theatrical 

Stage Employees, etc., 70 F. Supp. 1008, affirmed
per curiam 165 F. 2d 216 (Ninth Circuit) ................ 12

Seale v. McKennon (Ore.), 336 P. 2d 345.....................  16
Smith v. Jones, Administrator, 138 Ga. 716, 76 S. E.

40 .....................................................................................  13
Smithberger v. Banning (Neb.), 262 N. W. 492.......... 16
Spradlin v. Georgia Ry. and Electric Co., 139 Ga. 575,

77 S. E. 799 .................................................................... 14
State v. Gauthier (Me.), 117 A. 588.................................  16
State v. Urquhart (Wash.), 310 P. 2d 261, 265.............. 16
State v. Webber (Me.), 133 A. 738.................................  16
United States v. Barnaby, 51 Fed. Rep. 2 3 ...................  17
United States v. Barney, 24 Fed. Cas. 1011.................. 17
United States v. Paul, 6 Pet. 141.....................................  17
United States v. Reid, 12 How. 361, 365, 13 L. Ed.

1023 ..............................    12,17
Utah Junk Co. v. Porter, 328 U. S. 39, 66 S. Ct. 889, 892 20
II. S. v. Stephens (Fifth Circuit), 208 F. 2d 105........  20



Ill

Statutes Cited.
Georgia Code 3-505 ................................. 5, 6,13,14,15,19, 20
Georgia Code 105-1302 ......................... 5,6,13,14,15,19,20
28 U. S. C. A. 729 ............................................................... 12
28 U. S. C. A. 1343 .............................................................  2
28 IT. S. C. A. 1343 (1), (2), (3) and (4 ) .......................  6
32 IT. S. C. A. 1988 ............................................................. 6
42 U. S. C. A. 1388 ..........................................................  14
42 IT. 8. C. A. 1983 ............................................................  2, 3
42 IT. S. C. A. 1985 (3) ....................................................  3
42 U. S. C. A. 1986 ........................................................ 2, 3,11
42 U. S. 0. A. 1988 ..............2, 3, 4, 6,11,12,15,17,18,19, 20

Textbook Cited.

Common Law, 11 Am. Jur., § 15, p. 168 10



UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT.

IN THE

No. 18,620.

HATTIE BRAZIER, 
Appellant,

v.
W. B. CHERRY et at., 

Appellees.

Appeal from the United States District Court 
for the Middle District of Georgia,

PETITION FOR REHEARING.

To the Honorable Court and the Judges Thereof:

Appellees in the above entitled cause, after the decision 
and judgment of this Court of July 7, 1961, seasonably 
present this, their petition for a rehearing of this cause, 
and, in support thereof, respectfully show:



2

I.

This Court, in its construction of the applicable Civil 
Rights statutes, has not properly found the intention of 
the Congress of the United States, as expressed either by 
the words of such statute or, reasonably and validly, im­
plied thereby.

II.

This Court, in its interpretation of the statutes, pres­
ently codified as 28 U. S. C. A. 1343, 42 U. S. C. A. 1983, 
42 U. S. C. A. 1986, and 42 U. S. C. A. 1988, and of the 
words thereof, has attributed an unreasonable intention 
to the Congress, and, in the process of its finding of such 
intention, has ignored cardinal rules of construction, i. e. 
Expressio unius est exclusio alterius; Expressio unius per­
sonae est exclusio alterius; Expressio facit cessare taci­
turn.

III.

In this Court’s construction of the meaning of the stat­
ute, presently codified as 42 U. S. C. A. 1988, this Court 
erred in the meaning attributed by it to the words “ suit­
able remedies”  as the same appear in the context of said 
statute, in that the Court extended its meaning beyond 
that intended by the Congress, so as to add to its normal 
and intended compass, rights that are substantive in 
character.

IV.

This Court, in its construction of the statute, codified 
as 42 U. S. C. A. 1988, erred in its determination that said 
statute made substantive additions of right and of offense



to those provided in and by the statutes, codified as 42 
U. S. C. A. 1983, 42 U. S. C. A. 1985 (3) and 42 U. S. C. A. 
1986.

V.

This Court, in its construction of the statute, codified 
as 42 U. S. C. A. 1988, apparently reached that erroneous 
conclusion, in part at least, by ignoring firm and reason­
able rules of statutory construction, i. e. that, with respect 
to “ legislation by reference or by adoption” , the adopted 
laws and statutes of the other sovereign are taken, as they 
exist and as construed by their creator, at the time of 
passage of the adopting statute.

VI.

This Court, in its construction of the statute, codified 
as 42 U. S. C. A. 1988, erred in its determination that the 
common law and statute law of the several States, and 
as varied and changed from time to time, can supply sub­
stantive rights and impose substantive offenses within the 
proper scope and compass of the statutes, codified as 42 
U. S. C. A. 1983, 42 U. S. C. A. 1985 (3) and 42 U. S. C. A. 
1986.

VII.

This Court, in its construction of the statute, codified as 
42 U. 8.. C. A. 1988, erred in its determination that the 
common law and statute law of the several States, and as 
varied and changed from time to time, can supply sub­
stantive rights and impose substantive offenses within the 
proper scope and compass of the statutes, codified as 42 
IT. S. C. A. 1983, 42 U. S. C. A. 1985 (3) and 42 U. S. C. A. 
1986, and, in the process of so doing and in its determina­
tion attributed to the Congress:



4

a. An unreasonable intention and an invalid enactment 
in delegation of the legislative powers of the Congress to 
the several States;

b. An unreasonable intention and, probably, invalid en­
actment, to have its laws operate non-uniformly through­
out the several States.

VIII.

This Court, in its construction of the statute, codified as 
42 U. S. C. A. 1988, erred in ignoring a cardinal rule of 
statutory construction that statutes should, and if reason­
ably possible, be construed so as to uphold its validity and 
avoid serious doubt thereof.

IX.

This Court, in its construction of the statute, codified as 
42 U. S. C. A. 1988, erred in that it overlooked or ignored:

a. That, under the laws of Georgia, the common law, as 
it existed on May 14, 1776, is, by statute, continued in effect 
as the law of Georgia until changed by the Constitutions 
and statutes of the State;

b. That, neither by the common law or by the statutes 
of Georgia, in effect at the time of passage of the statute, 
could any action or cause of action, asserted by the Appel­
lant herein, have survived to the Appellant.

c. That any action or cause of action that the Appellant 
may now have under the common law or statute law of 
Georgia is an action or cause of action of her own and not 
one transmitted by her husband and to her through any 
applicable survival law or statute of the State of Georgia.

d. That the statute laws of Georgia, which alone can fur­
nish any action or cause of action to the Appellant here,



have been uniformly construed by the two appellate courts 
of Georgia to afford and affect substantive rights and not 
remedial processes.

X.

This numbered showing of cause for rehearing cannot 
properly be said to assign error for, until the clarification 
hereby respectfully requested is made, error or errors, addi­
tional to those specified in the other grounds of this peti­
tion, cannot be pointed.

The appellant presents multiple causes of action. They 
are listed on page 4 of the original brief of the appellant 
filed in this court.

The appellant appears in two capacities, individually and 
as administratrix of the Estate of James Brazier.

The death statutes of Georgia were adopted at different 
times. They extend to different people. They apply dif­
ferent measures of damage. They require the complainant 
to comply with different standards.

This Court, on page 12 of the written opinion, refers to 
two statutes of Georgia, i. e., Code 3-505 (as the same was 
amended in 1952 to insert “ cause of action” ) and Code 
105-1302.

We are aware that this Court has said that it makes no 
difference that the appellate courts of Georgia have uni­
formly said that each (Code 105-1302 and the 1952 “ cause 
of action”  amendment to Code 3-505) are substantive in 
character and specifically are not remedial in character.

However, we are not certain if this Court has said, or has 
intended to say that, irrespective of time (before or after



—  6 — -

passage of the statute codified as 32 U. S. C. A. 1988) both 
are applicable here.

Nor are we certain that this Court has determined that 
the Appellant, afforded either or both of the causes of 
action prescribed in Georgia Code 3-505 and Georgia Code 
105-1302, takes their benefit cum onere at the time of 
enactment of the statute codified as 42 IT. 8. C. A. 1988, 
and as such burdens have been prescribed by other statutes 
of Georgia or as the same have been construed by the high­
est appellate court of Georgia.

XI.

This Court, in its construction of the statute, codified as 
42 U. S. C. A. 1988, and in its application thereto of the 
Georgia statutes, codified in the Georgia code as Code 3-505 
and Code 105-1302, erroneously extended the compass of 
the statute, codified as 28 U. 8. C. A. 1343 (1), (2), (3) 
and (4), and erroneously extended jurisdiction to the 
United States District Court for the Middle District of 
Georgia in a non-federal case in which there is no diversity 
of citizenship.

XII.

Each and all of the foregoing grounds are urged to this 
Court’s extension of the reach of the statute, codified as 
42 IT. 8. C. A. 1988, so as to encompass the statutes of 
Georgia codified as Code 3-505 and Code 105-1302, and as 
to each of such Georgia statutes.

For the reasons stated above, and as the same are fully 
illustrated in the brief of petitioners contemporaneously 
herewith submitted, petitioners request that a rehearing be 
granted and that at such rehearing the judgment of this 
Court of July 7, 1961, be reconsidered and that the judg­



ment of the United States District Court for the Middle 
District of Georgia be affirmed.

T h is ............day of July, 1961.

CHARLES J. BLOCH,

ELLSWORTH HALL, JR.,
Attorneys for Appellees, Petitioners.

710 Walnut Street Building,
Macon, Georgia.

BLOCH, HALL, GROOVER & HAWKINS,
Of Counsel.

Appellees and petitioners herein, by their attorneys, 
hereby certify that the foregoing petition for rehearing is 
presented in good faith and not for delay, and is, in the 
opinion of counsel, well founded in law and proper to be 
filed herein.

T h is ............day of July, 1961.

710 Walnut Street Building, 
Macon, Georgia.

Bloch, Hall, Groover & Hawkins, 
Of Counsel.



Certificate of Service.

I do certify that I have mailed a copy of the within and 
foregoing petition for rehearing to the following at the 
addresses shown:

Thurgood Marshall, Esq.,
Jack Greenberg, Esq.,
10 Columbus Circle,
New York 19, New York.

Donald L. Hollowell, Esq.,
859% Hunter Street, N. W.,
Atlanta, Georgia.

C. B. King, Esq.,
221 South Jackson Street,
Albany, Georgia.

This July . . . . . . .  1961.



IN THE

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT,

No, 18,620.

HATTIE BRAZIER,
Appellant,

v,
W, B. CHERRY et al., 

Appellees.

Appeal from the United States District Court 
for the Middle District of Georgia.

BRIEF FOR PETITIONERS, APPELLEES, IN 
SUPPORT OF THEIR MOTION 

FOR REHEARING.

I.

Ground I of the petition for rehearing, contemporane­
ously submitted herewith, and in complaint of this Court ’s 
finding as to the intention of the Congress, is common to 
all of the grounds of the petition. It is our hope that the



10 —

merit of Ground I of the petition will be illustrated by the 
portions of this brief to follow.

This error of the Court, suggested here, will not be ex­
panded here, save to say that, while the intention of the 
enacting legislative body is the prime cardinal of statutory 
construction and the final objective of judicial interpreta­
tion and construction, a statute is the written word and the 
final, definitive voice of the enacting agency. Rules that 
once were and, we hope, are still extant, are those of almost 
coordinate authority, that, what is not set forth in a stat­
ute, is usually used, in seeking intent, only in contrast with 
what is actually stated in the statute. Additions, by im­
plication, are not to be obtained by wish or backward 
glance, nor from air, or vacuum, through a judicial ‘ ‘ crack­
ing”  process.

“ Statutes are not, however, to be deemed to repeat the 
common law by implication unless the intention to do so is 
obvious.”  Common Law, 11 Am. Jur., §15, p. 168, citing 
Fairfax v. Hunter, 7 Cranch. (TJ. S.) 603; 3 L. Ed. 453.

II.

Ground II of the petition for rehearing poses the basic 
question of whether the Civil Rights statutes are not self 
expositive of the substantive rights and the substantive 
penalties that the Congress intended to grant and impose. 
Called in aid of our position are the rules that statutory ex­
pression of one usually excludes the unexpressed others.

We are aware that the rule has been charily used and 
frequently relegated to minor position “ when applied to 
acts of Congress enacted at widely separated times. ’ ’ How­
ever, we sincerely believe that it should be fully enforced 
here, for all of the Federal statutes under consideration 
here were of the same pattern, passed in the short span of



— 11.

years (1861-1871), during and immediately following the 
War Between the States. It is hardly likely that the Con­
gress would have failed to specifically note and legislate 
any facet of substantive right or offense that could be 
persuaded.

Our assumption that the Congress was well aware of 
wliat was being “ left out”  of the statutes here being con­
sidered, is well fortified by the fact that the proposed 
“ Sherman Amendment”  of 1871 contained the words 
“ shall be liable to the person injured, or his legal repre­
sentatives,”  in marked contrast to the wording of the 
statutes applicable here, where the emphasized language 
is singularly absent, save in the statute codified as 42 U. 8. 
C. A. 1986, where a cause of action is specifically provided 
to representatives of the deceased but damages are limited 
to $5,000.00.

Courts do, with frequency, remedy slip-shod legisla­
tion in arriving at legislative intent but, in the circum­
stances in which these statutes were being debated, in view 
of the proposed “ Sherman Amendment”  and its specific 
language, in view of the variant language in these statutes 
themselves, can it be fairly said that the Congress “ over­
looked”  this language, which the Court now inserts? 
“ Where reason ceases, the law ceases.”

We do not labor the question further. We do respectfully 
ask that the Court reconsider that portion of Appellees’ 
original brief in this Court, pages 11-16.

III.

Ground III of the petition for rehearing suggests the 
error of this Court in the meaning attributed by it to the 
statute codified as 42 U. 8. C. A., 1988 and to the words 
therein appearing, “ suitable remedies.”



We respectfully submit that, in this area of decision, 
this Court has found the contrary of that of every other 
recorded decision of which we have knowledge.

In Schatte et al. v. International Alliance of Theatrical 
Stage Employees, etc., 70 F. Supp. 1008, affirmed per 
curiam 16,5 F. 2d 216 (Ninth Circuit) it was distinctly 
held:

“ 28 U. S. C. A., Sec. 729 merely establishes the 
procedure to be followed in certain classes of cases. 
This section has reference not to the extent or scope of 
jurisdiction, nor to the rules of decision, but to the 
forms of procedure and remedy.”  (28 U. S. C. A., 
Sec. 729 is the same as 42 U. S. C. A. 1988.)

To the same effect and reasoning are United States v. 
Reid, 12 How. 361, 365, 13 L. Ed. 1023; In Re Stupp, 23 
Fed. Cas. No. 13,563, page 296; Scaffidi v. United States 
(First Circuit), 37 F. 2d 203, 207, and Dyer v. Kasuhisa 
(Hawaii), 138 F. Supp. 220.

It should be here remembered that 28 U. S. C. A., 
Sec. 729 (now 42 U. S. C. A. 1988), is but a re-enactment 
and modification of the Judiciary Act of 1789 (1 Stat. 73) 
and the Crimes Act of 1790 (1 Stat. 112). Reference is 
made to the next succeeding portions of this brief in 
further illustration of the suggested error of this court in 
defining “ suitable remedies.”

IV.

Grounds IV, V, VI, VII, VIII, IX  and XII, of the petition 
for rehearing, all suggest the error of this Court in its 
construction of the . statute, codified as 42 IT. S. C. A. 1988, 
so as to engraft upon the Civil Rights statutes substantive 
additions embraced within the provisions of Georgia stat­



utes (Georgia Code 3-505, 105-1302). Such grounds, there­
fore, will together he expanded in this portion of the 
brief.

The common law of Georgia, as it existed either at time 
of passage of the Federal Civil Rights statutes or now, 
would not permit the survival, to the Appellant, of any 
right of action that might have accrued to the deceased, 
James Brazier.

Prior to amendments made in 1935 and 1952, there was a 
specific survival statute in Georgia (Code 3-505), which 
was separate and distinct and entirely unrelated to Code 
105-1302. However, as the statute existed prior to the 
amendments, it was only applicable where an action had 
been instituted and one of the parties thereafter died. 
In Smith v. Jones, Administrator, 138 Ga. 716, 76 S. E. 40, 
this statute, enacted in 1889, and in point of time long after 
passage of the Federal Civil Rights statutes, was inter­
preted and it was distinctly held, in a full bench opinion, 
that,:

“ At common law a cause of action for a personal 
tort abated on the death of the tort-feasor. This rule 
was modified by statute (Civil Code 4421) (now 3-505), 
so that it should not apply in case of the death of the 
defendant. The phraseology of that section leaves it 
plain that the exception was limited to cases where 
action had been instituted against the tort-feasor be­
fore his death. If the tort-feasor died before suit 
against him, the cause of action did not survive.”

The converse of this factual situation, i. e., death of the 
potential plaintiff prior to bringing suit, was ruled upon, 
again in full bench opinion, in King v. Southern Railway 
Company, 126 Ga, 794, 55 S. E. 965, decided in 1906, and 
to the same effect that the intention of the enactment



—  14

(Code 3-505) “ was to save pending actions only, and not 
to give an additional right to the personal representative.”

It is therefore quite clear that, neither by the common 
law nor statute law of Georgia, as it existed at the time 
of passage of the Federal Civil Eights statute, could there 
have been any “ survival”  of any of the causes of action 
sought to be asserted by Appellant in this case. It is 
also quite clear that the legislature of Georgia had ac­
corded different and distinct treatment to remedial sur­
vivorship of actions and the creation of causes of action 
as provided by the separate and distinct Georgia Death 
statute (Code 105-1302). Historically, they have been 
regarded as separate and distinct matters by the legis­
lature and the courts of Georgia.

This is made abundantly clear in Spradlin v. Georgia 
Ry. and Electric Co., 139 Ga. 575, 77 S. E. 799; Complete 
Auto Transit, Inc. v. Floyd, 214 Ga. 232, 104 S. E. 2d 208; 
Biddle v. Moore, 87 Ga. App. 524, 74 8, E. 2d 552.

In the latter case, Biddle v. Moore, supra, the Court 
of Appeals of Georgia considered the effect upon the stat­
ute of an amendment to Code 3-505 which introduced the 
phrase “ cause of action” .

There the Court clearly distinguished between remedial 
laws, which “ confirm existing rights”  or “ further rem­
edy” , and statutes creating a “ cause of action”  and 
thereby giving “ new substantive rights” .

The law of Georgia, which this Court has applied in its 
decision of July 7, is not alone Georgia Code Sections 
3-505 and 105-1302, as this Court would read them. The 
law is rather these Code Sections, as the Courts of Georgia 
have read them and interpreted them.

Quite aside then from the question of the time status 
of State laws allegedly “ borrowed”  by 42 U. S. C. A.



15

1388, and quite aside from the question whether the legis­
lature of one sovereign can depend upon action in futuro 
of another sovereign, can this Court either strip from 
Georgia Code Sections 3-505 and 105-1302, the meaning 
attributed to them by the Georgia courts, or, as so con­
strued by the Georgia courts, fit them within the frame­
work, reasonably found to exist, of 42 TJ. S. C. A. 1988?

Simply stated, the Death Statute of Georgia (Code 105- 
1302) creates a right of action entirely separate and apart 
from any that James Brazier had prior to his death. Be- 
coverable damages are for the “ full value”  of that portion 
of his life that would have probably remained if his death 
had not occurred in the manner complained of. The 
“ cause of action”  created by the 1952 amendment of 
Georgia Code 3-505 is a “ new substantive right”  not 
remedial in character.

These “ rights”  are given by the State of Georgia and 
it is our earnest position that neither can be added to the 
Federal Civil Bights statutes, and by the avenue of 42 
U. S. C. A. 1988.

With respect to the Georgia Death Statute (Code 105- 
1302) this Court was not dealing with “ survival”  of an 
action or cause of action in any sense of the word, and no 
matter how the word can be twisted or turned. It is true 
that “ actions and causes of action”  for “ injury to per­
son”  do “ survive”  under Georgia Code 3-505 (as amended 
in 1952) and, therefore might justify variant treatment 
by this Court from that accorded Code 105-1302. However, 
it is our primary contention that both the death statute 
and the survival statute are not remedial in character but 
are of “ new substantive rights”  not within the meaning 
of the Federal Act of “ adoption”  (42 U. S. C. A. 1988).

We come now to the “ time”  status of adopted laws and 
statutes. In correlation are questions of delegation by



■— 16

one sovereign of its legislative powers to another, of the 
desired if not required uniform operation of laws, and of 
the rule that statutes should, if possible, be so construed 
as to render them valid and not to create serious doubt 
on that score. Of course, the intention of the legislature, 
reasonably arrived at, is inter-twined with all.

Insofar as the decisions of the courts of the States are 
concerned the applicable rule is clear:

“ Statutes adopting existing federal rules, regula­
tions or statutes are valid, but attempts to adopt fu­
ture federal rules, regulations or statutes are uncon­
stitutional and void.”

Such is the ruling of State v. Urquhart (Wash.), 310 P. 
2d 261, 265; Brock v. Superior Court (Cal.), 71 P. 2d 209; 
Florida Industrial Comm. v. State (Fla.), 21 So. 2d 599; 
Florida Industrial Comm. v. Peninsular L. Ins. Co. (Fla.), 
10 So. 2d 793; State v. Webber (Me.), 133 A. 738; State v. 
Gauthier (Me.), 117 A. 588; In re Opinions of the Justices 
(Mass.), 133 N. E. 453; Dearborn Ind. Inc. v. City of Dear­
born (Mich.), 49 N. W. (2) 370; Smithberger v. Banning 
(Neb.), 262 N. W. 492; Holgate Bros. Co. v. Bashore (Pa.), 
45 Daupli County 274; Santee Mills v. Query (S. C.), 11.5 
S. E. 202; Nostrand v. Balmer (Cal.), 335 P. 2d 17; Seale 
v. McKennon (Ore.), 336 P. 2d 345; Dawson v. Hamilton 
(Ky.), 314 S. W. 2d 535; Danveger v. Staats (N. Y .), 196 
N. E. 61.

This is also the law of Georgia. Featherstone v. Norman,
170 Ga. 370, 153 S. E. 58 (relying upon various authorities 
including those of the United States Supreme Court herein­
after referred to).

As to the “ time”  status of State laws adopted by Fed­
eral law the rule seems to be true.



17

In Franklin v. United States, 216 U. S. 559, there was 
considered a federal statute, which “ borrowed,”  from the 
States, the punishment provided by the laws of the several 
States and applied such punishment to offenders in places 
ceded by the State to the United States. It was held that 
the scope of 'the “ borrowing”  statute “ is limited to the 
criminal laws in force in the several States at the time of 
the enactment of the legislation, and those statutes do not 
delegate to such States authority to in any way change 
the criminal law of the United States.”

Of similar holding are United States v. Paul, 6 Pet. 141; 
United States v. Barney, 24 Fed. Cas. 1011; United States 
v. Barnaby, 51 Fed. Rep. 23; Kendall v. United States, 12
Pet. 524, 625; In re Heath, 144 U. S. 921.

And this was also the announced rule of United States v. 
Reid, 12 How. 361, 365, -where the Judiciary Act of" 1789 
and the Crimes Act of 1790 (the progenitors of 42 U. S. 
C. A. 1988) were construed. As we read that ease, the de­
cision was two-fold: (1) The Acts were construed to refer 
to “ modes of procedure”  to be borrowed from the several 
States and (2) that the form of such “ modes of pro­
cedure”  were to be determined at the time of passage of 
the adopting enactments.

We are aware that in Rosen v. United States, 245 U. S. 
467, the so-called “ dead hand”  of Reid has been some­
what disregarded as to the time status of modes of pro­
cedure. We are not aware that its reasoning as to the 
meaning of the statutes generating 42 U. S. C. A. 1988 has 
been overruled or disregarded or that even the funda­
mental reasoning of Reid has been lessened with respect 
to state laws of substantive nature.

To the contrary, after decision in Rosen, this Court ad­
hered to the rule of Reid in Holmes v. United States, 269



—  18 —

F. 96, and the decision of Scaffidi v. United States, supra, 
was rendered.

In Scaffidi, a ‘ ‘ middle ground”  between Reid and Rosen 
was reached.

It was there said:

“ It is also true that the Reid case has been modified 
by the case of Rosen v. United States (citations). By 
judicial construction the Rosen case removes the bar 
which prevented a person previously convicted of a 
felony from testifying in a criminal action, but it is a 
long reach to hold that the Rosen case warrants us 
in adopting current state statutes for the guidance of 
trials in criminal cases in the matter of impeaching 
or discrediting witnesses” (Emphasis ours). The 
Court in Scaffidi then quotes from Reid and concludes, 
“ The reasoning of the above quoted language is as 
sound now as it was in 1851 when announced.”

Scaffidi is illustrative of the continuing view of the strict 
confines of the statutes that fathered 42 U. S. C. A. 1988. 
It is not to be assumed that the Congress was unaware of 
these interpretations when it substantially re-enacted and 
modified them. We sincerely believe that Congress ad­
visedly determined that the confines of these statutes re­
main narrow and not to be burst asunder.

There is nothing to the contrary of our reasoning here 
in Just v. Chambers, 312 U. S. 383, 61 S. Ct. 687, 85 L. Ed. 
903, nor in Cox v. Roth, 348 U. S. 207, 75 S. Ct. 242, 99 
L. Ed. 260, and cited by this Court (at pages 10 and 11) 
in support of its decision, for in neither was involved a 
specific Federal statute which, through the years has been 
construed within narrow limits, and with those limits all 
within the utter bounds of “ modes of procedure.”  Fur-



—  19

therm ore, the gist of Just v. Chambers is that “ the mari­
time law has never been considered as a complete and all 
inclusive body of substantive law”  and maritime law has 
traditionally borrowed from state laws even of substan­
tive nature.

In Cox v. Roth, the Congress had not legislated as to 
areas in which other laws might be borrowed. And in 
neither of these cases was the question presented as to 
whether the Federal Courts, in adopting state statutes, 
are permitted to interpret such statutes as they see fit, 
rather than as the highest courts of the state, enacting 
such statutes, have declared them. Since laws “ adopted”  
may include judicial decisions of the state, the answer to 
the question appears to be obvious.

We have attempted to show that both of the Georgia 
statutes (Ga. Code 3-505 and 105-1302) are statutes crea­
tive of substantial right and are not statutes remedial 
and relating to “ modes of procedure.”

We have illustrated that Ga. Code 3-505 did not come 
into existence until long after passage of the Civil Rights 
Acts or 42 U. S. C. A. 1988.

We have illustrated that in no sense of the word can 
Ga. Code 105-1302 be considered as a statute of “ survival”  
of any action or right of action that James Brazier, de­
ceased, may have had, had he remained in life.

Furthermore, if this Court should adopt our view as to 
“ time”  adopted statutes are to be taken into the Civil 
Rights Acts, if at all, it should be noted that at the time 
of the Civil Rights Acts and 42 U. 8. C. A. 1988, a widow 
could not recover for the death of her husband except 
upon criminal negligence involving murder or manslaugh­
ter, and as contained and defined in the criminal code of



20

Georgia. Daly v. Stoddard, Trustee, 66 Ga. 145, and it was
not until 1895 that the widow was relieved of the addi­
tional burden of criminal prosecution of the offender or 
showing good cause for her failure to so prosecute.

And aside from the “ time”  as to which adopted statutes 
are to be “ incorporated,”  these “ conditions”  to the rights 
of the widow cry aloud that this was no remedial statute 
affecting “ modes of procedure.”

And can it be said that a militant Congress of the war 
years and immediately after intended to clasp these State 
statutes to the bosom of the Civil Eights Acts? Again we 
say “ where reason ceases the law ceases.”

“ All construction is the ascertainment of meaning. 
And literalness may strangle meaning But in constru­
ing definite procedural provision we do well to stick 
close to the text and not import argumentative quali­
fications from broad, unexpressed claims of policy.”  

Utah Junk Co. v. Porter, 328 IT. S. 39, 66 S. Ct.
889, 892.

“ Action based entirely upon statute must find its 
warrant in statute, and courts cannot, upon pretense of 
construing statute, enlarge its coverage to bring within 
it those not expressly or by clear intendment embraced 
within its terms.”

U. S. v. Stephens (Fifth Circuit), 208 F. 2d 105.

V.

In Ground X  we have asked this court to at least clarify 
its decision of July 7, 1961.

While it is our dominant view and position that neither 
of the Georgia statutes (Ga. Code 3-505, 105-1302) are 
within the intendment of the Civil Rights Acts or 42 U. S.



—  21 —

C. A. 1988, it is conceivable, from standpoint of time of 
passage and from content, that greater reason might attend 
the “ incorporation”  of one than the other, within the 
framework of the Federal statutes.

We respectfully ask that the Court review its decision 
in the light of its application to each of Georgia statutes 
(Code 3-505 and 105-1302), separatedly, and, in its review, 
apply to each of them the reasoning which we have at­
tempted to set forth in this brief.

VI.

The foregoing portions of this brief are illustrative and 
expansive of Grounds XI and XII of the petition for re­
hearing.

Respectfully submitted,

CHARLES J. BLOCH,

ELLSWORTH HALL, JR.,
Attorneys for Appellees, Petitioners.

710 Walnut Street Building,
Macon, Georgia.

BLOCH, HALL, GROOVER & HAWKINS,
Of Counsel.

Certificate of Service.

I do certify that I have mailed a copy of the within and 
foregoing brief to the following at the addresses shown:

Thurgood Marshall, Esq.,
Jack Greenberg, Esq.,
10 Columbus Circle,
New York 19, New York.



Donald L. Hollowell, Esq., 
859% Hunter Street, N. W., 
Atlanta, Georgia.

C. B. King, Esq.,
221 South Jackson Street, 
Albany, Georgia.

—  22 —

This July 1961.