85 F. Supp. 15 | E.D. Pa. | 1949
Joseph A. Kelly has brought this action ■against The Delaware River Joint Commission, a corporation, Philadelphia Transportation Company, a corporation, and J. I. Hass Co., Inc., seeking damages for injuries allegedly sustained while “engaged in painting the portion of the bridge structure overhanging the railroad right of way, over the Delaware River, between the 'Cities of Philadelphia and Camden.”
The sole basis of jurisdiction relied upon is that all three defendants are liable under the provisions of the Federal Employers’ Liability Act, 45 :U.S.C-A. § 51 et seq. There is no allegation of diversity of citizenship. The complaint after alleging the corporate existence of “The
There are certain fundamentals necessary for invoking the benefits of the Federal Employers’ Liability Act. A defendant must have been, at the time of the occurrence of the injury, a common carrier by railroad in interstate or foreign commerce, and the injured person must have suffered such injury while he was employed by the carrier in such commerce.
Plaintiff contends that the mere fact that J. I. Hass Co., Inc., a painting contractor, was engaged in painting the bridge structure overhanging the railroad right of way resulted in its being thereby jointly engaged with the other defendants in a necessary element of interstate commerce, and by reason thereof a common carrier. This does not follow. On plaintiff’s theory fellow employees would he “common carriers.”
As to the remaining defendants, the allegations are sufficient, for the purposes of these motions, to constitute such defendants “common carriers by railroad.” The fact that the distance across the bridge may be short would not prevent The Delaware River Joint Commission from being such a common carrier.
The only allegation of employer-employee relationship in the complaint now before us -is that Kelly was employed by the painting contractor, J. I. Hass Co., .Inc. There is no allegation of any relationship between J. I. Hass Co., Inc., and ■either of the two defendants alleged to be “common carriers” except that -they were all “jointly” engaged. There is no allegation that there was any employer-employee relationship between plaintiff and either of the two “common carrier” defendants. No suit can be entertained against .the “common carrier” if the injury is sustained by an employee of an independent contractor.
The motions to dismiss filed on behalf of The Delaware River Joint Commission, a corporation, and Philadelphia Transportation -Company, a corporation, must therefore be granted. The complaint is dismissed as to all three of the defendants.
Paragraph 2 of the complaint states “The defendant, The Delaware Iiiver Joint Commission, is a Corporation organized and existing by virtue of the Act of the Commonwealth of Pennsylvania approved July 9, 1919, P.L. 814 [36 P.8. § 3421 et seq.], and of the State of New Jersey Chapter 27 of the Laws of New Jersey of 1929.”
45 U.S.C.A. § 51. North Carolina Railroad Company v. Zachary, Administrator of Burgess, 232 U.S. 248, 34 S.Ct. 305, 58 L.Ed. 591, Ann.Cas.1914C, 159.
Sheaf v. Minneapolis, St. P. & S. S. M. R. Co. et al., 8 Cir., 162 F.2d 110.
Gaulden v. Southern Pac. Co. et al., D.C.N.D.Cal., 78 F.Supp. 651; Fort Street Union Depot Co. v. llillen, 6 Cir., 119 F.2d 307; United States v. Brooklyn Eastern District Terminal, 249 U.S. 296, 39 S.Ct. 283, 63 L.Ed. 613, 6 A.L.R. 527; Union Stock Yard & Transit Co. v. United States et al., 308 U.S. 213, 60 S. Ct. 193, 84 L.Ed. 198.
United States v. Brooklyn Eastern District Terminal, supra, 249 U.S. at page 305, 39 S.Ct. 283, 63 L.Ed. 613, 6 A.L.R. 527.
Stanfield v. Penna. Railroad Co. (D. C.E.D.Pa. Civil Action No. 7386, filed April 8, 1948, unreported); Gaulden v. Southern Pac. Co. et al., supra; Pennsylvania R. Co. v. Roth, 6 Cir., 163 F.2d 161.
Chicago, Rock Island & Pacific Railway Company v. Bond, Administrator of Turner, 240 U.S. 449, 36 S.Ct. 403, 60 L.Ed. 735; Gaulden v. Southern Pac. Co. et al., supra; Pennsylvania R. Co. v. Roth, supra; Cimorelli v. New York Cent. R. Co., supra.