Stewart v. Lincoln-Douglas Hotel Corp.

• Decision Date: 11 January 1954
• Docket Number: No. 10916.,10916.
• Citation: 208 F.2d 379
• Parties: STEWART v. LINCOLN-DOUGLAS HOTEL CORP.
• Court: U.S. Court of Appeals — Seventh Circuit

208 F.2d 379 (1953)

STEWART v. LINCOLN-DOUGLAS HOTEL CORP.

No. 10916.

United States Court of Appeals Seventh Circuit.

December 1, 1953.

Rehearing Denied January 11, 1954.

William R. Ming, Jr., Nelson M. Willis, Chicago, Ill., for appellant.

Henry R. Barber, Springfield, Ill., for appellee.

Before MAJOR, Chief Judge, and FINNEGAN and SWAIM, Circuit Judges.

SWAIM, Circuit Judge.

The plaintiff, Roeschelle Stewart, a citizen of the State of Wisconsin, residing in Milwaukee, filed this action against the defendant, Lincoln-Douglas Hotel Corporation, an Illinois corporation, the owner and operator of the Abraham Lincoln Hotel in Springfield, Illinois, seeking damages from the defendant for its refusal to furnish him accommodations in said hotel. The complaint was in three counts. The first alleged breach of contract; the second, breach of common law duty as an innkeeper; and the third, violation of the Illinois statute, Ch. 38, § 125, Ill.Rev. Stats. (1951), which prohibits discrimination on account of race or color by proprietors of hotels and other places furnishing accommodations and services to the public. This statute also provides that any person violating the statute shall be liable to the person denied such accommodation in a sum not less than $25.00 nor more than $500.00.

The complaint was dismissed on the defendant's motion on August 15, 1952. In its memorandum and order dismissing the case, the District Court pointed out that, while the complaint demanded judgment for damages in the amount of $10,000.00, even though the damages were unliquidated, the court did not acquire jurisdiction in a diversity case when the complaint showed on its face that there could not possibly be a recovery for as much as the jurisdictional minimum of $3,000.00.

On August 20, 1952, on the motion of the plaintiff, the court set aside the order of dismissal and the plaintiff was given leave to file an amended complaint within thirty days. On October 16, 1952, fifty-six days later, the plaintiff filed an amended complaint alleging the same facts in each count but adding in each count that the defendant's action in refusing the plaintiff accommodations was "wilful and intentional" and that the plaintiff was thereby harmed and damaged "in that the plaintiff was subjected to indignity and embarrassment at the hands of this defendant." To this amended complaint the defendant again filed a motion to dismiss.

The next entry in the record is an order entered May 4, 1953, dismissing the amended complaint, which order is in the following words:

"Order

(Filed May 4, 1953)

This matter coming before the court on defendant's motion to dismiss the amended complaint, the said complaint is hereby dismissed for the reasons set forth in the memorandum herein of August 14, 1952 and at direction of plaintiff without a hearing.

Chas. G. Briggle United States District Judge. (See Letter Attached Hereto)" "(The following letter is attached to the Order of May 4, 1953.) "(Filed May 4, 1953) "Nelson M. Willis Lawyer Phone Andover 3-3296 35 South Dearborn Street — Room 408 Chicago 3, Illinois April 10, 1953 Clerk of United States District Court Southern District of Illinois Springfield, Illinois

Dear Sir:

Enclosed please find original and one copy of an Order in the case of Stewart vs. Lincoln-Douglas Hotel Corporation.

This matter has been discussed with Mr. Barber and it is my understanding that he is agreeable to have this Order. I am sending him simultaneously a copy of the Order.

Please advise me when the order may have been entered.

Yours very truly Nelson M. Willis Nelson M. Willis NMW:oma Enclosure (M. A.)"

The next entry in the record, dated May 29, 1953, is the plaintiff's Notice of Appeal to the Court of Appeals under Rule 73(b), 28 U.S.C. The record shows no attempt by the plaintiff to have the District Court make any change in its order of May 4th.

Before considering the merits of this case we must first consider the defendant's motion to dismiss this appeal.

The defendant insists that the order dismissing the amended complaint was not a final order and, therefore, was non-appealable because the plaintiff did not expressly elect to stand on his amended complaint and no final judgment was entered disposing of the cause of action. It is true that our jurisdiction is limited, with certain exceptions not here involved, to appeals from final decisions. Title 28 U.S.C. § 1291. But, in the instant case, we think the order of the District Court dismissing the amended complaint was a "final decision" within the meaning of the statute. Here, as in Asher v. Ruppa, 7 Cir., 173 F.2d 10, 11, it is clear that the District Court by its order dismissing the complaint intended to and did terminate the litigation; and that the plaintiff by promptly taking this appeal elected to stand on the complaint. Hence, the order is appealable. Steccone v. Morse-Starrett Products Co., 9 Cir., 191 F.2d 197, 200; Cleary Bros. v. Christie Scow Corp., 2 Cir., 176 F.2d 370, 372; Markert v. Swift & Co., 2 Cir., 173 F.2d 517, 519.

A more serious objection to the plaintiff's case in this appeal is the fact that the order appealed from recites that it was entered at the direction of the plaintiff. It is not disputed that an order dismissing the amended complaint was drafted by plaintiff's counsel, submitted by him to counsel for the defendant for their...