his injury was due to one or the other of several distinct acts of alleged negligence, or to a combination of some or all of them. In either view, there would be but a single wrongful invasion of a single primary right of the plaintiff, namely, the right of bodily safety, whether the acts constituting such invasion were one or many, simple or complex.
'A cause of action does not consist of facts, but of the unlawful violation of a right which the facts show. The number and variety of the facts alleged do not establish more than one cause of action so long as their result, whether they be considered severally or in combination, is the violation of but one right by a single legal wrong. The mere multiplication of grounds of negligence alleged as causing the same injury does not result in multiplying the causes of action. 'The facts are merely the means, and not the end. They do not constitute the cause of action, but they show its existence by making the wrong appear. 'The thing, therefore, which in contemplation of law as its cause, becomes a ground for action, is not the group of facts alleged in the declaration, bill, or indictment, but the result of these in a legal wrong, the existence of which, if true, they conclusively evince."'
The United States Court of Appeals for the 5th Circuit had this very question before it on appeal in the matter of Pate v. Standard Dredging Corp., 193 F.2d 498, and the same arguments were advanced there as here, and that Court reversed the District Court for failing to remand the matter to the State Court where the action had been commenced. There the Court said, 193 F.2d at page 501:
'The Jones Act did not exclude the seaman's admiralty right to maintenance and cure nor his resort to the maritime remedy for injury due to the unseaworthiness of the vessel but some of the courts have indicated by way of obiter dictum that an injured seaman must elect whether to found his action upon unseaworthiness under the maritime law or to bottom it upon negligence under the Jones Act. The more recent cases, however, held that such election of remedies is not required. McCarthy v. American Eastern Corporation, 3 Cir., 175 F.2d 724; Balado v. Lykes Bros. S.S. Co., 2 Cir., 179 F.2d 943. This question of election of remedies we need not decide but we shall rest our decision on the broad principle that a suit under the Jones Act for negligence and under the maritime law for unseaworthiness, where there is but a single wrongful invasion of a single primary right, are not separate and independent claims or causes of action within the meaning of Title 28, United States Code, Section 1441(c).'
The identical question presented and the same view as that expressed by the 5th Circuit in the Pate case was adopted in Moltke v. Intercontinental Shipping Corp., D.C., 86 F.Supp. 662; Ducoff v. Cities Service Oil Co., D.C., 102 F.Supp. 423; and Crespo v. Pacific-Atlantic S.S. Co., D.C., 117 F.Supp. 504.
Consequently, this Court determines that the matter, in line with the authorities above cited, should be remanded to the State Court. This leaves the question of whether the Court should strike the allegations of unseaworthiness.
In McCarthy v. American Eastern Corporation, 3 Cir., 175 F.2d 724, 727, the Court of Appeals for this Circuit approved the action of the District Judge who, upon the trial of a matter commenced under the Jones Act, supra, submitted both the question of negligence under the Jones Act and the question of unseaworthiness under Admiralty Law to the jury for determination, with the following language:
'We conclude, in accord with our decision in the German case, that the trial judge rightly permitted the jury to base its verdict for the single recovery to which under the law the plaintiff was entitled on both the unseaworthiness of the vessel and the negligence of the members of the crew.'
The application to strike will be denied and the matter will be remanded to the New Jersey Superior Court, Law Division, from whence it was removed.
Counsel will prepare an order.
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