Brenner v. Kelly

• Decision Date: 08 January 1962
• Docket Number: No. 4-61 Civ. 247.,4-61 Civ. 247.
• Citation: 201 F. Supp. 871
• Parties: Claude M. BRENNER, Plaintiff, v. Dr. William KELLY, Dr. Alan C. Hymes and Dr. W. G. Weathers, Defendants.
• Court: U.S. District Court — District of Minnesota

201 F. Supp. 871

Claude M. BRENNER, Plaintiff, v. Dr. William KELLY, Dr. Alan C. Hymes and Dr. W. G. Weathers, Defendants.

No. 4-61 Civ. 247.

United States District Court D. Minnesota, Fourth Division.

January 8, 1962.

Alan L. Stiegler and Ross Sussman, Minneapolis, Minn., for plaintiff in support of motion.

Crane Winton, Minneapolis, Minn., for defendants Dr. William Kelly and Dr. Alan C. Hymes in opposition.

Miles Lord, U. S. Atty., and John J. Connelly, Asst. U. S. Atty., Minneapolis, Minn., for defendant Dr. W. G. Weathers in opposition.

NORDBYE, District Judge.

This action came before the Court on plaintiff's motion to remand.

Plaintiff brought this action in State Court seeking damages in the sum of $100,000 against the defendants, all of whom are physicians and surgeons in the employ of the Veterans Administration Hospital, Minneapolis, Minnesota. He alleges that the defendants failed to exercise reasonable care in performing an operation on him in that they wrongfully and needlessly removed a normal left fifth rib when they should have removed the sixth rib with its attendant tumor. He contends that the removal of the fifth rib constituted an assault and battery and a trespass upon his person, causing him pain and suffering and permanent injuries, with attendant consequences, not necessary to relate here in detail. A timely petition was filed by the defendants for removal to this Court under and pursuant to Title 28, United States Code, § 1442(a) (1), the pertinent portions of which read:

"(a) A civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:

"(1) Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office * * *."

The basis for removal is the petition filed by the defendants. In considering the applicability of the statute under which this proceeding was removed, we commence with the premise that the Veterans Administration is an agency of the United States and that these defendants were acting under an agency of the United States, and hence may be classed as officers thereof. The question posed by this motion is: Were they acting under the color of such office when they allegedly were negligent in performing an operation on plaintiff's person at the Veterans Hospital? Concededly, these doctors in the performance of this operation were acting in their capacity as physicians and surgeons employed by the United States. The allegation of assault and battery when defendants allegedly removed the wrong rib in performing the operation does not change the proceeding under the removal statute from the usual malpractice case.

At the outset, however, we are confronted with a petition for removal which merely recites,

"4. That the Petitioners are physicians and surgeons in the employ of the United States at the United States Veterans Administration, an agency of the United States at the Veterans Hospital located at Fort Snelling, Minneapolis, Minnesota, and that in said capacity, the plaintiff alleges that they did perform and assist in performing surgery on the plaintiff herein.

"5. That plaintiff herein alleges that the defendants negligently failed to exercise ordinary care, and failed to exercise reasonable degree of learning, care, skill and experience in the performance of the surgery mentioned in Plaintiff's complaint.

"6. That by reason of each and all of the above statements said action is an action removable from the Court from sic which it was commenced to the United States District Court, District of Minnesota, Fourth Division, under and pursuant to Title 28, United States Code, 1442 (a) (1) and 1446(b)."

(Section 1446(b) is the procedural statute for removal).

There is, of course, a complete absence of any facts in this petition which would justify a finding that these defendants did that which they are charged with doing under color of their office as employees of the Veterans Administration. In other words, there is no affirmative showing that the acts with which they are charged were done by virtue of any Federal authority or within its ambit. Moreover, there is no showing that there is any official connection between that which they allegedly did and the authority vested in them as officers of the United States. There is no claim of right under Federal authority. In performing acts under color of office, the acts must come within the scope of the necessary incidents of the defendants' duties as officers of the United States. The alleged negligent act of a physician or surgeon who is employed by the United States in administering medical care or surgical treatment is not shown to be an incident of his official duties. In other words, the defendants are not contending that they were ostensibly acting in accordance with the duties of their official positions. It is not suggested here in the petition for removal or otherwise that the alleged malpractice was predicated on any Federal right or authority. No Federal defense or question under Federal law is presented. See State of Tennessee v. Davis, 100 U.S. 257, 25 L.Ed. 648.

The statute in question as to the right of removal refers to criminal as well as civil proceedings. The language used by Chief Justice Taft in State of Maryland v. Soper, 270 U.S. 9, 46 S.Ct. 185, 70 L. Ed. 449, as to removal of a criminal proceeding, is apposite here. The statute considered by the court in the Soper case has since undergone amendments, but the decision does tend to clarify the term "under color of office" and that language after the amendments is to be accorded the same interpretation as before. The court states, p. 33, 46...