Clancy v. Brown
| Decision Date | 05 May 1934 |
| Docket Number | No. 9830.,9830. |
| Citation | 71 F.2d 110 |
| Parties | CLANCY v. BROWN et al. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Maurice J. O'Sullivan, of Kansas City, Mo. (Arthur C. Popham and Cowgill & Popham, all of Kansas City, Mo., and John M. P. Miller, of Kansas City, Mo., on the brief), for appellant.
Paul G. Koontz, of Kansas City, Mo. (Spencer F. Harris, of Kansas City, Mo., on the brief), for appellee President Hotel Corporation.
Before GARDNER and WOODROUGH, Circuit Judges, and MARTINEAU, District Judge.
Gertrude Clancy, appellant, brought this action originally in the Missouri state court against Irma Brown and the President Hotel Corporation, a corporation, appellees, to recover damages for personal injuries. Plaintiff and defendant Irma Brown are citizens of Missouri. The President Hotel Corporation is a Delaware corporation. Upon its petition this action was removed to the federal court. Plaintiff then moved to remand and upon denial of her motion she declined to proceed further upon the ground of lack of jurisdiction in the federal court. Judgment of dismissal was then entered and plaintiff prosecutes this appeal.
Plaintiff's petition alleged that the President Hotel Corporation was engaged in operating the President Hotel, in Kansas City, Mo.; that Irma Brown was the housekeeper and superintendent of the corporation, in charge of the hotel, and was a vice principal with power to employ and discharge employees and that plaintiff worked under her, subject to her orders and directions; that it was the custom of the hotel to provide for the enjoyment and diversion of its employees by arranging various forms of entertainment and for gatherings; that in furtherance of said custom on the occasion complained of, defendants arranged for a gathering of their employees on the roof of said hotel to observe the passing of the Graf Zeppelin dirigible over Kansas City; that on August 28, 1929, plaintiff was employed as a seamstress by said Hotel Corporation, and was subject to the orders and directions of Irma Brown; that while so employed she was ordered and directed by Irma Brown to go to the roof gathering, with other employees, including Irma Brown; that the only available path to the roof was a stairway which was unlighted over which she was directed to travel and which was under the control and supervision of the defendants and was maintained by them; that while she was returning from the roof and was exercising ordinary care for her safety, through the joint and concurring negligence of the defendants in failing to properly light and maintain said stairway, she fell and was severely injured.
The Hotel Corporation's petition for removal alleged diversity of citizenship between it and the plaintiff, and the proper amount in controversy; that no actionable negligence was charged against Irma Brown; and that the complaint did not state facts sufficient to constitute a cause of action against her. It also alleged that even if a cause of action was stated against Irma Brown, the facts alleged in plaintiff's complaint upon which such a cause of action was predicated were false and fraudulent, and that Irma Brown was fraudulently and in bad faith joined as a defendant as a sham and fraudulent device for the sole purpose of preventing removal to the federal court. That the controversy was in truth and in fact one between the plaintiff and defendant company, and would constitute a separable controversy, if any valid claim existed against said defendant Irma Brown. The removal petition especially denied the truth of the allegations of plaintiff's complaint with reference to Irma Brown, and charged that plaintiff and her attorneys well knew from the testimony taken in a previous trial of said cause that plaintiff was only granted permission by the said Irma Brown to leave her work for the purpose of going to the roof of the hotel for her own pleasure to view the passing Zeppelin; that such permission was in no wise connected with any work required of the plaintiff and was solely a permission to be excused to go to a place not in any way connected with the business for which plaintiff was employed, or in any way connected with the business operated by the defendant Hotel Corporation; that plaintiff and her attorneys well knew that the said Irma Brown neither performed nor omitted to perform any act or deed which caused or contributed to the injuries sustained by plaintiff and that said Irma Brown was under no duty to furnish or provide plaintiff any place to work and was under no duty to provide a means by which plaintiff might, for her own pleasure go to the roof, which was not in any way connected with her business, and was under no duty to plaintiff to keep the stairway and the roof lighted; that the said Irma Brown gave the plaintiff no order or direction that could constitute any basis for personal liability against the said Irma Brown; and that plaintiff and her attorneys well knew that this defendant was entitled to and probably would remove this cause to the federal court wherein the cause had previously been tried, and hence had resorted to the joinder of the said alleged resident defendant to prevent said removal.
Plaintiff's motion to remand does not directly deny these allegations of the petition for removal....
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