229 F.2d 499 (2nd Cir. 1956), 234, Fitzgerald v. Pan American World Airways

Docket Nº:234, 23850.
Citation:229 F.2d 499
Party Name:Ella FITZGERALD, John Lewis, Georgiana Henry and Norman Granz, Appellants, v. PAN AMERICAN WORLD AIRWAYS, Inc., Appellee.
Case Date:January 26, 1956
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 499

229 F.2d 499 (2nd Cir. 1956)

Ella FITZGERALD, John Lewis, Georgiana Henry and Norman Granz, Appellants,

v.

PAN AMERICAN WORLD AIRWAYS, Inc., Appellee.

Nos. 234, 23850.

United States Court of Appeals, Second Circuit.

January 26, 1956

Argued Jan. 12, 1956.

Plaintiffs' complaint alleged the following: Plaintiffs Fitzgerald, Lewis and

Page 500

Henry are Negroes. Miss Fitzgerald has achieved an international reputation as a singer. Lewis is a pianist and Miss Fitzgerald's accompanist. Miss Henry is Miss Fitzgerald's secretary. Plaintiff Granz is Miss Fitzgerald's manager and representative. The first three had made reservations on a plane operated by defendant, which is a common carrier subject to the provisions of the Civil Aeronautics Act, 49 U.S.C. Section 401 et seq. The defendant issued plaintiffs tickets for first-class transportation from San Francisco, California, to Sydney, Australia, and defendant reserved seats for them on a flight leaving San Francisco on July 19, 1954. Granz joined them in Honolulu, Hawaii, and was to continue with the others to Sydney; defendant had issued him a ticket and a reserved seat for that flight. The plane 'descended at Honolulu, Hawaii on July 19, 1954, for a temporary stop. When the aircraft was about to continue its flight to Sydney, Australia, the agents of the defendant in Honolulu, Hawaii refused to allow the plaintiffs to reboard the said plane and to continue on the flight to Sydney, in their assigned first-class seats, and the said aircraft departed from Honolulu without the plaintiffs. The said refusal was willful and malicious and was motivated by prejudice against the plaintiffs Fitzgerald, Lewis and Henry because of their race and color, and the said conduct subjected plaintiffs to unjust discrimination and undue and unreasonable prejudice and disadvantage, in violation of Section 404, Subdivision (b) of the Civil Aeronautics Act of 1938, 52 Stat. 993, U.S.C. 49, Section 484(b).'

The complaint asked a judgment for money damages exceeding, as to each plaintiff, the jurisdictional amount. No diversity of citizenship was alleged.

Defendant moved to dismiss the complaint. Accompanying its motion was an affidavit stating that plaintiffs and defendant are citizens of New York. Plaintiffs did not dispute this sworn assertion. The district judge entered an order which dismissed the complaint for want of federal jurisdiction. Plaintiffs have appealed.

The opinion of the judge is reported in 132 F.Supp. 798.

49 U.S.C. Section 484(b) reads as follows:

'(b) No air carrier or foreign air carrier shall make, give, or cause any undue or unreasonable preference or advantage to any particular person, port, locality, or description of traffic in air transportation in any respect whatsoever or subject any particular person, port, locality, or description of traffic in air transportation to any unjust discrimination or undue or unreasonable prejudice or disadvantage in any respect whatsoever.'

Section 403 provides:

'There is recognized and declared to exist in behalf of any citizen of the United States a public right of freedom of transit in air commerce through the navigable air space of the United States.'

Section 622(a) makes it a federal crime to violate, knowingly and wilfully, designated sections of the Act, including Section 484(b).

Section 642(a), (b) and (c) read as follows:

'(a) Any person may file with the Board a complaint in writing with respect to anything done or omitted to be done by any person in contravention of any provision of this chapter, or of any requirement established pursuant thereto. If the person complained against shall not satisfy the complaint and there shall...

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