Ducoff v. Cities Service Oil Co.

102 F. Supp. 423 | S.D. Tex. | 1951

KENNERLY, Chief Judge.

Plaintiff, Lee Ducoff, administrator of the estate of Joseph Sheldrick, deceased, sued the defendant, Cities Service Oil Company, in a state court for damages for the use and "benefit of the widow and minor daughter of Joseph Sheldrick, deceased, for the alleged wrongful death, of said Joseph Sheldrick while employed by defendant as a seaman aboard the Steamship Logans Fort. The case has been removed into this Court, and plaintiff has filed motion to' remand.

It is perfectly plain that the suit is under the Jones Act, Section 688, Title 46, U.S.C. A., and, therefore, not removable into' this Court. Defendant says, however, that because plaintiff alleges not only negligence on the part of defendant under the Jones Act, but also alleges that such steamship was unseaworthy, etc., the case is removable under Section 1441, Title 28, of the United States Code Annotated.

I am not prepared to say that under the allegations in plaintiff’s complaint of unseaworthiness of the steamship he states a separate or independent claim or cause of action, but if he does, I think the question of removal is settled by the case of American Fire & Casualty Co. v. Florence C. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702, and cases there cited, and Bentley v. Halliburton Oil Well Cementing Co., 5 Cir., 174 F.2d 788. Under the rule laid down in these cases, I do not think this case is removable. It should and will be remanded to the'state court.

Let an order be drawn and presented accordingly.