24 F.2d 591 | W.D. Wash. | 1927
(after stating the facts as above). [1,2] No issue is made to the direct statement in the petition for removal, that the relation of employer and employee did not exist between the alien defendants and the injured plaintiff, and the allegations in the complaint that the alien defendants are the owners of the vessel and employed the local defendant to unload cargo of the vessel, with the additional statement that the plaintiff was employed by the- defendants — the local defendant’s business being that of a stevedore to load and unload cargo — does not change the relation to employer and employee. Employment of local defendant by the alien defendants negatives plaintiffs’ employment by alien defendants, in the absence of facts establishing it. In the absence of denial or further statement of fact, the petition in that respect must be taken as admitted (Connolly et ux. v. C., M. St. P. R. R. [D. C,] 3 F.[2d] 818; see, also, City of Winfield v. Wichita Natural Gas Co. [C. C. A.] 267 F. 47), and all conclusions in the complaint of such relations, not supported by fact, can serve no purpose (Wilson v. Republic Iron & Steel Co. et al., 257 U. S. 92, 42 S. Ct. 35, 66 L. Ed. 144; see, also, Connolly et ux. v. C., M. St. P. R. R. Co., supra, and cases cited).
The plaintiff, having elected to pursue his remedy under the Jones Act against the stevedoring company, may not join in that action defendants seeking liability under another statute or law. The cause of action against the local and foreign defendants arises from two distinct relations, and provides two distinct remedies — one, statutory; the other, common-law.
Liability under federal statute and a common-law liability are distinct, and a cause of action under both may not be united. See Jackson v. C., R. I. & P. Ry. Co. (D. C.) 178 F. 432; Union Pac. R. R. Co. v. Wyler, 158 U. S. 285, 15 S. Ct. 877, 39 L. Ed. 983; Stark v. U. S. (D. C.) 14 F.(2d) 616; Helms v. Nor. Pac. Ry. Co. (C. C.) 120 F. 389; Fergason v. C., M. & St. P. R. Co. (C. C.) 63 F. 177; Beuttel v. C. M. & St. P. R. Co. (C. C.) 26 F. 50; Kelly v. Robinson (D. C.) 262 F. 695.
The defenses to the statutory liability and the common-law liability may be different. The controversy is clearly separable, and the alien defendants may not be impleaded in an action under the Jones Act, since the relationship of employer and seaman does not exist. The Reliance (D. C.) 21 F.(2d) 872, 1927 A. M. C. 1339. See, also, Reynolds v. Addison Miller Co. et al., 143 Wash. 271, 255 P. 110.
Motion to remand denied.
