Allison v. Great Atlantic & Pacific Tea Co.

• Decision Date: 20 October 1938
• Docket Number: No. 4393.,4393.
• Citation: 99 F.2d 507
• Parties: ALLISON v. GREAT ATLANTIC & PACIFIC TEA CO. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

99 F.2d 507 (1938)

ALLISON v. GREAT ATLANTIC & PACIFIC TEA CO. et al.

No. 4393.

Circuit Court of Appeals, Fourth Circuit.

October 20, 1938.

T. L. Kirkpatrick, of Charlotte, N. C. (H. L. Taylor, of Charlotte, N. C., on the brief), for appellant.

F. Grainger Pierce, of Charlotte, N. C. (Guthrie, Pierce & Blakeney, of Charlotte, N. C., on the brief), for appellees.

Before NORTHCOTT and SOPER, Circuit Judges, and CHESNUT, District Judge.

PER CURIAM.

On March 11, 1931, the appellant, an employe of the Great Atlantic and Pacific Tea Company, in its bakery plant at Charlotte, North Carolina, fell down the stairway in the plant and sustained alleged injuries therefrom. To recover damages therefor she sued the Company and one Victor L. Reitz, alleged to be the superintendent of its plant, as joint tort feasors in a court of the State of North Carolina. The plaintiff and individual defendant, Reitz, being citizens of North Carolina, the Company, an Arizona corporation, removed the case to the United States District Court for the Western District of North Carolina as a separable controversy between it and the plaintiff, under the authority of 28 U.S.C. § 71, 28 U.S.C. A. § 71, its petition alleging that the relations of the defendant, Reitz, to the Company and to the plaintiff were such that he had no legal responsibility to her and that he had been fraudulently joined in the suit for the purpose of preventing removal to the federal court. There, in due course, the plaintiff moved to remand the case denying the essential allegations of the petition for removal, and after hearing such proof as was offered on the issues made, the District Judge refused to remand the case.

Upon the conclusion of the testimony for both parties on the recent trial of the case upon its merits, the District Judge directed the jury to find a verdict for the defendants, on the ground that the plaintiff had failed to show any negligence with regard to the construction or maintenance of the stairway where the plaintiff fell. The plaintiff's appeal presents only two points for consideration: (1) Whether refusal to remand the case was proper and (2) whether there was any substantial evidence of the defendants' negligence. In our opinion there was no error in either ruling.

As to the refusal to remand the case to the State Court, we do not find in the record the order passed by the District Judge thereon and are not informed as to the precise grounds of the ruling; but the proof bearing on the point in the record was quite sufficient to establish the essential grounds for the removal as set out in the Company's petition therefor. The defendant's negligence as alleged in the plaintiff's complaint with respect to the stairway related principally to asserted defects in construction, although negligence was also alleged with respect to the maintenance of the stairway in that it was said that it had been left in a greasy condition due to improper washing. The proof, however, tended to show that the defendant Reitz, a foreman of the bakery plant and not the defendant company's general superintendent, had not been employed by the Company until some years after the original construction of the building and stairway therein; and had no duties with respect to their maintenance and was in fact not present at the time the plaintiff sustained her fall. It was a reasonable inference from the proof that Reitz had not been joined as a defendant in good faith but only for the purpose of preventing the removal of the case to the federal court. In consequence the District Judge clearly was correct in refusing to remand the case. Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 42 S.Ct. 35, 66 L.Ed. 144; Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183, 190, 52 S.Ct. 84, 76 L.Ed. 233, 77 A.L.R. 904; Clancy v. Brown, 8 Cir., 71 F.2d 110; Johnson v. Lumber Co., 189 N.C. 81, 126 S.E. 165; Cox v. Lumber Co., 193 N.C. 28, 136 S.E. 254; LaNeve v. Great Atl. & Pac. Tea Co., 207 N.C. 281, 176 S.E. 560.

Nor was there any error in directing the verdict for the defendants. On the whole testimony there was no substantial evidence of the defendant's negligence. The building in which the plaintiff worked had been newly and substantially constructed in 1928 and the stairways were of cement and iron in accordance with approved practice. There was no evidence of any defect in their construction or of similar accidents happening to other employes at any time. And with respect to the alleged improper washing of the steps causing a slippery condition, the only testimony was that of the plaintiff and her mother, also an employe of the defendant company. The plaintiff, a young married woman 16 years of age, had been employed at the plant for several months before her fall, daily using the stairways. She said: "I had already gone down about two steps when I...