Dixon v. Martin

• Decision Date: 05 November 1958
• Docket Number: No. 17304.,17304.
• Citation: 260 F.2d 809
• Parties: Leo P. DIXON, Appellant, v. John W. MARTIN, as Trustee of Florida East Coast Railway Company, a corporation authorized to do business in the State of Florida, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

260 F.2d 809 (1958)

Leo P. DIXON, Appellant, v. John W. MARTIN, as Trustee of Florida East Coast Railway Company, a corporation authorized to do business in the State of Florida, Appellee.

No. 17304.

United States Court of Appeals Fifth Circuit.

November 5, 1958.

Walter A. Apfelbaum, Claude Pepper Law Offices, Claude Pepper, Miami, Fla., for appellant.

Jerry B. Crockett, Miami, Fla., Scott, McCarthy, Preston, Steel & Gilleland, Miami, Fla., for appellee.

Before RIVES, TUTTLE, and JONES, Circuit Judges.

RIVES, Circuit Judge.

This appeal is from a judgment sustaining a motion to dismiss the action based "on the ground that there is no substantial Federal question involved, no diversity of citizenship, and this Court lacks jurisdiction over the subject matter of the complaint."

The amended complaint is in two counts, the first predicated on the Federal Employers' Liability Act,¹ and the second on the common law of Florida. It is conceded that if the district court had any jurisdiction of the second count, it was under the doctrine of pendent or ancillary jurisdiction announced in Hurn v. Oursler, 1933, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148. The question which we must answer is whether the first count, copied in the margin,² states such a "federal question"³ as will support jurisdiction.

The only claimed negligence was that specified in paragraph numbered 5 and, under its averments, which occurred in 1953. This action was commenced on November 19, 1957. 45 U.S.C.A. § 56 provides, "No action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued." The appellant does not dispute the proposition that this is not a mere limitation pertaining to the remedy, but "* * * by the statute giving the cause of action, the lapse of time not only bars the remedy, but destroys the liability."⁴

Instead, appellant pins his hope of reversal on the fact that appellee's duty to him ceased only when he left its employ in June of 1955, within three years before the commencement of the action. He reasons that there may have been a continuous tort in the sense that the appellee allowed him to aggravate his tubercular condition, or else a tort of a successive or separate nature in that the appellee failed to provide him with adequate medical treatment, or negligently permitted him to return to work. He points particularly to the averments of paragraph number 4 of Count 1, quoted in footnote 2, supra.

We would have to indulge in pure speculation and conjecture to construe that paragraph to state a claim which accrued within three years before the commencement of the action. Nowhere was it made to appear in the district court, by pleadings, affidavits, reasonable inference, or otherwise, that there was any negligent act or omission occurring after 1953. It follows that Count 1 of the complaint affirmatively shows that the plaintiff was entitled to no relief under the Federal Employers' Liability Act. "A federal question plainly devoid of merit will not sustain jurisdiction."⁵

A fortiori ancillary jurisdiction of the second count was not acquired.⁶

Affirmed.

1 45 U.S.C.A. § 51 et seq.

2 1.

"1. The Plaintiff is a resident of Dade County, Florida, and was employed by the Florida East Coast Railway Company for more than 35 years, until 1957, when he retired due to a total and permanent disability. The Defendant, (hereinafter called `Railway Company'), is the trustee of the Florida East Coast Railway Company, a corporation which at all times relevant to this action was authorized to do business in the State of Florida, was doing business in Dade County, Florida, and was the owner and operator of a railroad in interstate commerce. This action arises under the laws of the United States, Title 45, Chapter 2, United States Code, Section 51, et seq., and under the laws of Florida.

"2. At all times relevant to this action, until his retirement in 1957, the Plaintiff was employed by the Defendant Railway Company in interstate commerce as a railroad conductor.

"3. For many years prior to 1957, Plaintiff paid a portion of his monthly wage to the Defendant Railway Company for the support of the East Coast Hospital Association, which said hospital was operated and staffed by the Defendant Railway Company for the medical care and treatment of its employees. Plaintiff submitted himself regularly to the hospital for physical examinations and as he was required and invited to do by the Defendant Railway Company. Plaintiff relied completely upon the skill and learning of the personnel of the said...