Pate v. Standard Dredging Corp., No. 13405.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: HUTCHESON, , and BORAH and STRUM, Circuit
• Citation: 193 F.2d 498
• Parties: PATE v. STANDARD DREDGING CORP.
• Docket Number: No. 13405.
• Decision Date: 06 February 1952

193 F.2d 498 (1952)

PATE
v.
STANDARD DREDGING CORP.

No. 13405.

United States Court of Appeals Fifth Circuit.

January 11, 1952.

Rehearing Denied February 6, 1952.

193 F.2d 499

Arthur J. Mandell, Houston, Tex., for appellant.

Albert J. DeLange, C. M. Hudspeth and E. J. Pitman, all of Houston, Tex., for appellee.

Before HUTCHESON, Chief Judge, and BORAH and STRUM, Circuit Judges.

BORAH, Circuit Judge.

This civil action at law to recover damages under the Merchant Marine Act of 1920, 46 U.S.C.A. § 688, commonly called the Jones Act, and for maintenance, was commenced by appellant, John E. Pate, in the District Court of Harris County, Texas, 80th Judicial District, and was removed by appellee, Standard Dredging Company, to the United States District Court for the Southern District of Texas on the ground of diversity of citizenship and requisite jurisdictional amount in controversy. A motion by appellant to remand the case to the state court was overruled. Thereafter, the case came on for trial and the court below made findings of fact and conclusions of law in favor of appellee and entered judgment accordingly. This appeal followed.

At the outset we are met with appellant's contention that the suit was improperly removed to the federal District Court and that the court erred in refusing to remand it. Appellant argues that a seaman may choose his forum for litigation of a cause of action for negligence under the Jones Act and once lodged in the State court the suit may not be removed to the federal courts. Appellee, on the other hand, claims that the court below did not err in its refusal to remand the case to the state court and sets forth three grounds in support of its contention: (1) that there is no longer any statute prohibiting the removal of a case brought in the state courts under the Jones Act; (2) that a cause of action for damages based on unseaworthiness is separate and independent from a cause of action under the Jones Act and is removable; and

193 F.2d 500

(3) that the cause of action for maintenance and cure affords a basis for removal in that it is a separate and distinct cause of action which would be removable if sued upon alone and, therefore, the entire case could be removed

Appellee's first point, that there is no longer any statute prohibiting removal of a case brought in the State courts under the Jones Act, is not well taken. The Jones Act provides that any seaman suffering personal injury in the course of his employment may, at his election, maintain an action for damages at law against his employer with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply. The act thus incorporates by reference and makes applicable to seamen injured in the course of their employment all statutes of the United States modifying or extending the common-law right or remedy in cases of injuries to railway employees. One such statute, the Federal Employer's Liability Act, 45 U.S.C.A. § 51 et seq. contained a provision, 45 U.S.C.A. § 56, that the jurisdiction of courts of the United States in such actions should be concurrent with that of the courts of the several states and that no case arising under the Act and brought in any State court of competent jurisdiction should be removed to a federal court. This provision did not in and of itself constitute any modification or extension of a common-law right or remedy, yet it was a part of a statute which did modify a common-law right or remedy, and was naturally held to have been appropriated by the Jones Act along with the other provisions of the Federal Employer's Liability Act. This statute, however, was not the only statute of the United States barring removal of actions brought under the Federal Employer's Liability Act. Section 71 of old Title 28, United States Code, provided that no case arising under the Federal Employer's Liability Act and brought in any State court of competent jurisdiction should be removable to any federal court. This provision likewise precluded removal of actions brought in State courts under the Jones Act.

It is true that by Section 18 of the Act of June 25, 1948, 62 Stat. 989, the Federal Employer's Liability...