RIVES, Circuit Judge.
This appeal is from a judgment sustaining a motion to dismiss the action based "on the ground that there is no substantial Federal question involved, no diversity of citizenship, and this Court lacks jurisdiction over the subject matter of the complaint."
The amended complaint is in two counts, the first predicated on the Federal Employers' Liability Act, and the second on the common law of Florida. It is conceded that if the district court had any jurisdiction of the second count, it was under the doctrine of pendent or ancillary jurisdiction announced in Hurn v. Oursler, 1933, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148. The question which we must answer is whether the first count, copied in the margin, states such a "federal question" as will support jurisdiction.
45 U.S.C.A. § 51 et seq.
28 U.S.C.A. § 1331.
The only claimed negligence was that specified in paragraph numbered 5 and, under its averments, which occurred in 1953. This action was commenced on November 19, 1957. 45 U.S.C.A. § 56 provides, "No action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued." The appellant does not dispute the proposition that this is not a mere limitation pertaining to the remedy, but "* * * by the statute giving the cause of action, the lapse of time not only bars the remedy, but destroys the liability."
Central Vermont R. Co. v. White, 1951, 238 U.S. 507, 511, 35 S.Ct. 865, 867, 59 L.Ed. 1433. See also, Damiano v. Pennsylvania R. Co., 3 Cir., 1947, 161 F.2d 534, 535; Brassard v. Boston Maine Railroad, 1 Cir., 1957, 240 F.2d 138; compare Simon v. United States, 5 Cir., 1957, 244 F.2d 703.
Instead, appellant pins his hope of reversal on the fact that appellee's duty to him ceased only when he left its employ in June of 1955, within three years before the commencement of the action. He reasons that there may have been a continuous tort in the sense that the appellee allowed him to aggravate his tubercular condition, or else a tort of a successive or separate nature in that the appellee failed to provide him with adequate medical treatment, or negligently permitted him to return to work. He points particularly to the averments of paragraph number 4 of Count 1, quoted in footnote 2, supra.
We would have to indulge in pure speculation and conjecture to construe that paragraph to state a claim which accrued within three years before the commencement of the action. Nowhere was it made to appear in the district court, by pleadings, affidavits, reasonable inference, or otherwise, that there was any negligent act or omission occurring after 1953. It follows that Count 1 of the complaint affirmatively shows that the plaintiff was entitled to no relief under the Federal Employers' Liability Act. "A federal question plainly devoid of merit will not sustain jurisdiction."
Ray v. Marion County, 5 Cir., 1934, 71 F.2d 509, 510.
A fortiori ancillary jurisdiction of the second count was not acquired.
Hart Wechsler, The Federal Courts and the Federal System, p. 808, suggests that the dog would be wagged by his tail if plenary trial of an ancillary claim was compelled by a primary claim disposed of on the pleadings.
Affirmed.