194 Cal. 344, S. F. 10816, Engel v. Davenport

Docket Nº:S. F. 10816
Citation:194 Cal. 344, 228 P. 710
Opinion Judge:LENNON, Judge
Party Name:E. B. ENGEL, Appellant, v. J. O. DAVENPORT et al., Respondents
Attorney:H. W. Hutton for Appellant. Farnham P. Griffiths, McCutchen, Olney, Mannon & Greene and J. B. McKeon for Respondents.
Judge Panel:JUDGES: In Bank. Lennon, J. Seawell, J., Richards, J., Lawlor, J., Waste, J., Shenk, J., and Myers, C. J., concurred.
Case Date:August 25, 1924
Court:Supreme Court of California

Page 344

194 Cal. 344

228 P. 710

E. B. ENGEL, Appellant,

v.

J. O. DAVENPORT et al., Respondents

S. F. No. 10816

Supreme Court of California

August 25, 1924

Page 345

Rehearing denied.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Franklin A. Griffin, Judge.

Affirmed.

COUNSEL:

H. W. Hutton for Appellant.

Farnham P. Griffiths, McCutchen, Olney, Mannon & Greene and J. B. McKeon for Respondents.

JUDGES: In Bank. Lennon, J. Seawell, J., Richards, J., Lawlor, J., Waste, J., Shenk, J., and Myers, C. J., concurred.

OPINION

LENNON, Judge

Page 346

[228 P. 711] This is an appeal by the plaintiff from a judgment rendered and entered by the superior court in and for the city and county of San Francisco in favor of the defendants, based upon an order sustaining the demurrer of J. O. Davenport, one of the defendants, to the plaintiff's complaint. The action, which was instituted in the superior court of the city and county of San Francisco, was brought against J. O. Davenport and the other defendants jointly, as the owner and the operators of the steamship "Davenport." The complaint alleged in substance that the plaintiff had suffered injuries because of the unseaworthiness of the vessel's appliances and in this behalf alleged that the vessel was unseaworthy when she left San Francisco, her home port, for Hoquiam, Washington, by reason of a defective pelican hook which broke at Hoquiam, Washington, fracturing plaintiff's skull. For this injury plaintiff claimed damages in the sum of fifty thousand dollars. Said complaint was filed in said superior court on the eighteenth day of January, 1923, twenty-one months after the injury to the plaintiff which forms the basis of the action.

The defendant J. O. Davenport demurred upon two grounds: (1) that the complaint did not state facts sufficient to constitute a cause of action and (2) that the alleged cause of action was barred by the provisions of section 340, subdivision 3, of the California Code of Civil Procedure, which provides that actions based upon personal injury must be commenced within one year. It is apparent that if the state statute of limitations is applicable, the demurrer was properly sustained.

Page 347

It is plaintiff's contention that the plaintiff's cause of action is brought under the provisions of the Merchant Marine Act of June 5, 1920 (41 Stats. at Large, 1007 [U. S. Comp. Stats., Ann. Supp. 1923, sec. 8337a]), which amended section 20 of the Seaman's Act of March 4, 1915 (38 Stats. at Large, 1164); that section 33 of the Merchant Marine Act incorporates therein by reference the federal Railway Employer's Liability Act of 1908 (35 Stats. at Large, 65) as amended in 1910 (36 Stats. at Large, 291 [U. S. Comp. Stats., sec. 8662]); that this last-mentioned act provides a two-year limitation for the commencement of actions brought under it; and that, therefore, such limitation applies to actions brought by seamen under the Merchant Marine Act (41 Stats. at Large, 988).

Section 33 of the Merchant Marine Act upon which plaintiff relies, reads as follows:

" Any seaman who shall suffer personal injury in the course of his employment, may, at his election maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located ."

Section 6 of the federal Employer's Liability Act, claimed by plaintiff to be incorporated by reference into the Merchant Marine Act, provides that, "No action shall be maintained under the act unless commenced within two years from the day the cause of action accrued. Under this Act an action may be brought in a circuit court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this Act, shall be concurrent with that of the courts

Page 348

of the several States, and no case arising under this Act and brought in any state court of competent jurisdiction shall be removed to any court of the United States."

It is the defendants' contention that, (1) if brought under section 33 of the Merchant Marine Act, the state court was without jurisdiction to entertain the action, and (2) [228 P. 712] whether brought under the Merchant Marine Act, as plaintiff contends, or under the general maritime law, as defendants contend, the one-year state statute of limitations is applicable.

In the former opinion rendered by this court it was held that if the action was brought under section 33 of the Merchant Marine Act the state court was without jurisdiction, and if brought under the general maritime law, the state statute of limitation was applicable, so that in either event the demurrer was properly sustained. The holding that the federal court had exclusive jurisdiction of all actions brought under section 33 of the Merchant Marine Act was based upon the theory that Congress plainly indicated an...

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