Seal v. INDUSTRIAL ELECTRIC INC.
| Decision Date | 23 June 1966 |
| Docket Number | No. 22561.,22561. |
| Citation | 362 F.2d 788 |
| Parties | Phillip D. SEAL, Appellant, v. INDUSTRIAL ELECTRIC, INC., Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Cornelius J. Ladner, Bay St. Louis, Miss., for appellant.
Charles R. Galloway, Gulfport, Miss., for appellee.
Before JONES and GEWIN, Circuit Judges, and HUNTER, District Judge.
The appellant, Phillip D. Seal, brought an action in a Mississippi state court against his employer, Industrial Electric, Inc. In his declaration he averred that he was assaulted, beaten and injured by Donald Strong, who was described as a foreman, agent and representative of the employer. In the declaration it was alleged that it was the duty of Industrial Electric to protect Seal from the assault of Strong while Seal was employed by it. Seal stated that the acts done were willfully and maliciously done and were without justification or provocation. Industrial Electric removed the cause to the United States district court and filed a motion to dismiss on the ground that the exclusive remedy of Seal was under the Mississippi Workmen's Compensation Act. The motion was granted, the cause was dismissed and Seal has appealed.
In a reply brief Seal suggests that Industrial Electric has obtained some sort of a tactical advantage from the removal to the Federal court as a result of Federal procedural rules. Perhaps the Federal rules deny an advantage to Seal rather than confer one upon his adversary.
A removed case proceeds according to Federal procedural rules as though it had originally been commenced in the Federal court. Wright, Federal Courts 125 § 40. Affirmative defenses must be affirmatively pleaded. Rule 8(c) Fed.Rules Civ.Proc. 28 U.S.C.A. The action may be dismissed if the complaint fails to state a claim upon which relief can be granted. Rule 12(b) Fed.Rules Civ.Proc. 28 U.S.C.A. Whether a particular matter is to be regarded as an affirmative defense is to be determined by state law. 1A Barron & Holtzoff (Wright ed.) § 279. It is the general rule that a complaint need not allege affirmatively that the action is not within the coverage of a compensation statute, but if the facts pleaded show that a claim for compensation is the exclusive remedy, the complaint is insufficient. 101 C.J.S. Workmen's Compensation § 949, p. 418. None of the decisions of the Mississippi Supreme Court are squarely in point. But there are decisions which furnish us with enough guidance to permit us to determine what, in our opinion,...
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Adkisson v. Jacobs Eng'g Grp., Inc.
...the defendant waived its affirmative workers’ compensation defense when it raised the argument only on appeal); Seal v. Indus. Elec., Inc. , 362 F.2d 788, 789 (5th Cir. 1966) (concluding that a claim of statutory immunity under Mississippi's workers’ compensation scheme was an affirmative d......
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Tormo v. Yormark, Civ. A. No. 298-73.
...of persuasion on that point, it is most appropriate to consult State law in making this formulation. See, e. g., Seal v. Industrial Electric, Inc., 362 F.2d 788 (5th Cir. 1966). The matter under consideration is not expressly covered by Rule 8(a), nor is the Court aware of case law, either ......
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Home Health Services, Inc. v. Currie
..."the action may be dismissed if the complaint fails to state a claim upon which relief can be granted." Seal v. Industrial Elec., Inc., 362 F.2d 788, 789 (5th Cir. 1966), appeal on remand, 395 F.2d 214 (5th Cir. 1968). The question of whether plaintiff has stated a claim under Fed.R.Civ.Pro......
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Funding Systems Leasing Corp. v. Pugh, 74--3823
...where the federal district court sits. Norman M. Morris Corp. v. Weinstein, 466 F.2d 137, 142 (5 Cir. 1972); Seal v. Industrial Electric, Inc., 362 F.2d 788, 789 (5 Cir. 1966); see Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The Georgia courts have not explic......