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GALBERT v. SHIVLEY

August 11, 1960

R.G. GALBERT, PLAINTIFF,
v.
CHARLES S. SHIVLEY, DEFENDANT.



The opinion of the court was delivered by: John E. Miller, Chief Judge.

The plaintiff has moved to remand this case to the Circuit Court of Hot Spring County, Arkansas, whence it was removed on behalf of the defendant by the Honorable Charles W. Atkinson, United States Attorney for the Western District of Arkansas, on July 30, 1960, under Title 28 U.S.C.A. § 1442(a)(1), which provides:

    "(a) A civil action * * * 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 or on account
  of any right, title or authority claimed under
  any Act of Congress for the apprehension or
  punishment of criminals or the collection of the
  revenues."

On July 8, 1960, the plaintiff filed his complaint in the State Court against defendant in which he alleged:

    "In the afternoon of February 27, 1960,
  plaintiff was driving his 1952 Model Chevrolet
  Pick-up Truck in a northerly direction on Wilson
  Street, which is a through street, and the
  defendant was driving a 1959 Model Plymouth
  Automobile in an easterly direction on McHenry
  Street, in the City of Malvern, Arkansas. McHenry
  Street makes a `T' intersection with Wilson
  Street. As plaintiff reached said `T'
  intersection, the defendant, without stopping,
  came out of McHenry Street and collided with the
  plaintiff's truck. The defendant, in the
  operation of his automobile, was negligent and
  careless (a) in failing to stop before entering
  the through street; (b) in failing to yield the
  right-of-way to traffic on the through street
  which was already in the intersection or so close
  thereto as to constitute an immediate hazard; (c)
  in failing to yield the right-of-way at such
  intersection to the vehicle on the right under
  the conditions and circumstances then existing;
  (d) in failing to keep an adequate lookout on
  approaching the end of McHenry at Wilson Street;
  (e) in failing to keep an adequate lookout on
  entering the intersection; (f) in failing to have
  and to keep his vehicle under such control as to
  be able to check his speed, stop or change his
  course of travel and avoid the collision, under
  the circumstances then existing. Plaintiff was at
  all times in the exercise of ordinary care for
  his own safety."

The plaintiff prays for judgment against the defendant for $1,250.00 for personal injuries and $236.45 for property damages, together with costs.

Summons and a copy of the complaint was served upon the defendant on July 11, and, as above stated, on July 30, the defendant filed his petition to remove. In the petition for removal the defendant, inter alia, alleges:

    "2. Before the commencement of this action and
  at all times hereinafter mentioned Charles S.
  Shivley, was and now is Officer in Charge of the
  Veterans Administration Office, Pine Bluff,
  Arkansas.
    "3. At all times mentioned in this action,
  petitioner was acting solely under color of his
  office driving a car owned by the United States
  of America for the purpose of making property
  inspections in Malvern, Arkansas, for the loan
  guaranty division of the Veterans Administration
  and all his acts in connection with the matters
  charged in the Complaint were committed by him
  under color of his said office."

The petition was duly verified by the defendant.

In the motion to remand the plaintiff alleges that there are no issues under the pleadings as to any acts of the defendant as an officer or under color of office within the meaning of Title 28 U.S.C. § 1442(a)(1), and that the defendant was at no time, with respect to the acts upon which the plaintiff bases his cause of action, acting as an officer or under color of office within the meaning of said section.

The plaintiff further alleges that the suit filed by him in the State Circuit Court is one against the defendant, individually, "for his individual acts of negligence and not one against Charles S. Shivley, as Federal Officer in charge of the Veterans Administration Office, Pine Bluff, Arkansas or any other capacity."

In his brief in support of the motion to remand, the plaintiff contends that the defendant was not an officer of the United States, that he was an administrator appointed under the rules pertinent to employment by the Veterans Administration, but that even if the defendant was an officer of the United States the negligent acts charged by plaintiff were not done by defendant under color of office within the meaning of the statute.

The defendant contends that the petition for removal alleges that all acts done by defendant were under the color of his office and that jurisdiction of the court in a removed case of this type depends upon the allegations of the verified petition for removal, and that, since the petition sets out the reason for removal within the language of ...


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