Allman v. Hanley, No. 18490.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtRIVES and WISDOM, Circuit , and CARSWELL
Citation302 F.2d 559
PartiesGeorge G. ALLMAN, Appellant, v. W. H. HANLEY et al., Appellees.
Docket NumberNo. 18490.
Decision Date19 April 1962

302 F.2d 559 (1962)

George G. ALLMAN, Appellant,
v.
W. H. HANLEY et al., Appellees.

No. 18490.

United States Court of Appeals Fifth Circuit.

April 19, 1962.


302 F.2d 560

Willis C. Darby, Jr., Mobile, Ala., for appellant.

Ralph Kennamer, U. S. Atty., Thomas E. Twitty, Jr., D. R. Coley, Jr., Sherman L. Cohn, Atty., Dept. of Justice, Mobile, Ala., for appellees.

Before RIVES and WISDOM, Circuit Judges, and CARSWELL, District Judge.

CARSWELL, District Judge.

From a record made up largely of pleadings, questions are here presented for review involving removal, service of process and summary judgment.

Appellant Allman, a civilian employee of the United States, filed suit originally in the courts of the State of Alabama seeking damages for injuries sustained by him as the result of surgery allegedly performed in a negligent manner by the appellee physicians at Brookley Air Force Base. Doctors Hanley and Wilkinson were both medical officers in the United States Air Force, and Taylor was a civilian doctor employed by the Air Force.

Personal service was made on Hanley and Taylor. Wilkinson was not served at this time.

In December 1958 the United States Attorney, representing Hanley and Taylor, filed petition for removal to the United States District Court on the ground that the defendants were acting solely under color of office and in the performance of their duties as officers and employees of the United States in accordance with Title 28, United States Code, Section 1442(a).

Wilkinson, unserved, did not join in this petition for removal.

In January 1959 plaintiff filed a motion to remand the cause to the Alabama court on the grounds that Hanley and Taylor were not acting under color of office, that they were not engaged in the performance of duty, and that the action did not involve a controversy within the original

302 F.2d 561
jurisdiction of the United States District Court. Plaintiff also sought to remand on the ground that all defendants had not joined in the petition for removal. The District Court denied this motion to remand on April 27, 1959

On March 18, 1959, while the case was in the District Court on this first motion to remand, appellant proceeded to serve Wilkinson by mail with process issuing from the state court pursuant to the Code of Alabama, Title 7, Section 199(1), for serving non-residents doing business in Alabama.

Apparently on the assumption that Wilkinson had been left behind and, perhaps, therefore, something was still viable about the case in the state court, on April 13, 1959, the United States Attorney filed a second petition for removal of the plaintiff's state court action. This second petition sought removal on the same grounds as the first and on the further ground of diversity of citizenship between Wilkinson and plaintiff. This brought on a second motion to remand by plaintiff although his first had already been denied. For new grounds plaintiff urged that Hanley and Taylor did not "timely join in the petition for removal."

The District Court denied this second motion to remand.

Wilkinson filed a motion to quash service, which was granted. He alleged, among other things, that the Alabama non-resident statute was not applicable in the case of an officer in the armed services of the United States wherein the negligence of which he is charged related to acts done solely under color of office and in the performance of duty.

After both motions to remand had been denied, plaintiff on June 30, 1959 filed an amended complaint against the three defendants in the United States District Court. Hanley and Taylor filed their answer, and on September 15, 1959 they filed motion for summary judgment. On November 13, 1959 the court granted summary judgment in favor of defendants Hanley and Taylor. This, together with the granting of Wilkinson's motion to quash service constituted a final order concluding the entire case. Final judgment was entered against plaintiff.

First the appellant urges that the action was not removable to the Federal District Court under Title 28, United States Code, Section 1442. He does not deny that acts done by a defendant as a Federal officer under color of his office are removable, but he contends that the petitions for removal failed to state a single fact to show what duties appellees were performing at the time the negligent acts occurred. The rationale of his attack is that the doctors may well have had the official duty to perform operations, but they were not authorized to perform operations negligently.

While there are no cases cited to us or coming to our attention involving the duties of Government physicians in this context, an examination of the broad field of official responsibility for negligent acts convinces us that appellant's contention in this regard is without merit. Acts done by an officer in the performance of the duty of his office do not lose their official character merely because they were done in a negligent manner. An officer is acting under color of office so long as he does not depart from the course of his duty so that it becomes his personal act.

In Maryland Casualty Co. v. Alford, 111 F.2d 388 (10th Cir.1940), certiorari denied 311 U.S. 668, 61 S.Ct. 27, 85 L.Ed. 429, the Court said: "In transporting the property of the Bureau back to the Oklahoma City office, McConnell was acting officially and when, while so engaged, he drove his automobile negligently, he was acting under color of his office. True, in driving negligently he acted improperly. But if the fact that acts done under color of office were improper would excuse liability on the officer's official bond, it would never arise."

See also Jones v. Buckelew, 247 Ala. 475, 25 So.2d 23 (1946); League v. National Surety Corp., 198 S.C. 289, 17 S.E. 2d 783 (1941); De Busk v. Harvin, 212 F.2d 143 (5th Cir.1954).

302 F.2d 562

The absence of detailed grounds setting forth basis for removal is not fatal to defendants' right to remove. We think that the allegation that petitioners were officers acting under color of office in the employment of the United States was sufficient. Title 28, United States Code, Section 1446(a) requires only a short, plain...

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76 practice notes
  • Maseda v. Honda Motor Co., Ltd., Nos. 87-5866
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • December 19, 1988
    ...Health, 676 F.2d 152, 158 (5th Cir.1982); 3 Argano v. Guzman Travel Advisors Corp., 621 F.2d 1371, 1375 (5th Cir.1980); Allman v. Hanley, 302 F.2d 559, 562 (5th Cir.1962); 4 Further, the remand statute, 28 U.S.C. Sec. 1447(c), provides that remand is appropriate only where the federal court......
  • Davis v. The Merv Griffin Co., Civ. A. No. 90-496 (JFG).
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • January 29, 1991
    ...that only the entire state court case may be removed to a federal district court under section 1441. See e.g., Allman v. Hanley, 302 F.2d 559, 562 (5th Cir.1962); Lowe v. Jacobs, 243 F.2d 432, 433 (5th Cir.1957), cert. denied, 355 U.S. 842, 78 S.Ct. 65, 2 L.Ed.2d 52 (1957); see generally, 1......
  • Grynberg Production Corp. v. British Gas, PLC, No. 1: 92 CV 496.
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • March 19, 1993
    ..."The absence of detailed grounds setting forth basis for removal is not fatal to the defendants' right to remove." Allman v. Hanley, 302 F.2d 559, 562 (5th Cir.1962). Furthermore, in a complaint invoking original federal question jurisdiction, the failure to name a particular statute upon w......
  • Murphy v. Kodz, No. 19508.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 21, 1965
    ...690 (D.C.Ga.1932); Jones v. Elliott, 94 F. Supp. 567 (D.C.Va.1950); Bradford v. Harding, 284 F.2d 307 (2d Cir. 1960); Allman v. Hanley, 302 F.2d 559, 562 (5th Cir. 1962): See also, Brown v. Weschler, 135 F.Supp. 622, 623 So, too, many cases indicate that if removable to a federal court, sub......
  • Request a trial to view additional results
76 cases
  • Maseda v. Honda Motor Co., Ltd., Nos. 87-5866
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • December 19, 1988
    ...Health, 676 F.2d 152, 158 (5th Cir.1982); 3 Argano v. Guzman Travel Advisors Corp., 621 F.2d 1371, 1375 (5th Cir.1980); Allman v. Hanley, 302 F.2d 559, 562 (5th Cir.1962); 4 Further, the remand statute, 28 U.S.C. Sec. 1447(c), provides that remand is appropriate only where the federal court......
  • Davis v. The Merv Griffin Co., Civ. A. No. 90-496 (JFG).
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • January 29, 1991
    ...that only the entire state court case may be removed to a federal district court under section 1441. See e.g., Allman v. Hanley, 302 F.2d 559, 562 (5th Cir.1962); Lowe v. Jacobs, 243 F.2d 432, 433 (5th Cir.1957), cert. denied, 355 U.S. 842, 78 S.Ct. 65, 2 L.Ed.2d 52 (1957); see generally, 1......
  • Grynberg Production Corp. v. British Gas, PLC, No. 1: 92 CV 496.
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • March 19, 1993
    ..."The absence of detailed grounds setting forth basis for removal is not fatal to the defendants' right to remove." Allman v. Hanley, 302 F.2d 559, 562 (5th Cir.1962). Furthermore, in a complaint invoking original federal question jurisdiction, the failure to name a particular statute upon w......
  • Murphy v. Kodz, No. 19508.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 21, 1965
    ...690 (D.C.Ga.1932); Jones v. Elliott, 94 F. Supp. 567 (D.C.Va.1950); Bradford v. Harding, 284 F.2d 307 (2d Cir. 1960); Allman v. Hanley, 302 F.2d 559, 562 (5th Cir. 1962): See also, Brown v. Weschler, 135 F.Supp. 622, 623 So, too, many cases indicate that if removable to a federal court, sub......
  • Request a trial to view additional results

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