St. Paul Fire & Marine Insurance Co. v. Cunningham
| Decision Date | 26 June 1958 |
| Docket Number | No. 15695.,15695. |
| Citation | 257 F.2d 731 |
| Parties | ST. PAUL FIRE & MARINE INSURANCE COMPANY, a corporation, Appellant, v. Homer CUNNINGHAM, Jess Gullett and Percy Laudingham, Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
James P. Shovlin, Jr., Franklin Plank, San Francisco, Cal., for appellant.
J. D. Burdick, San Francisco, Cal., for appellees.
Before ORR, POPE and HAMLEY, Circuit Judges.
Wilbur C. Rasmussen, while engaged in loading logs, was injured and as a result thereof died. His heirs brought suit in the California courts against Ben Mast Lumber Company, alleging that the death of Rasmussen resulted from the negligence of its employees. The liability of Mast Lumber Company was based upon the theory of Respondeat Superior. Subsequent to trial in the state courts, a judgment was rendered against said Lumber Company on the 29th day of June, 1955. An appeal was taken and subsequently dismissed. The remittitur dismissing the appeal is dated August 22, 1956. On the 17th day of August, 1956, the judgment was paid. On the 23rd day of August, 1956, appellant as subrogee of Mast Lumber Company brought the instant suit to recoup its losses against appellees, employees of Mast involved in the accident, under California Labor Code § 2865, which provides that "an employee who is guilty of a culpable degree of negligence is liable to his employer for the damage thereby caused to the employer."
The trial court dismissed the suit on the ground that the statute of limitations had run. This determination was on the theory that the cause of action of Mast against its employees, if any, had arisen at the time the accident occurred on March 9, 1951, and that the applicable statute of limitations was the one year period for tort actions provided in section 340(3) of the California Code of Civil Procedure. Appellees in their brief discuss what they deem to be the contention of appellant to the effect that the cause of action asserted by appellant is one for breach of an implied contract of indemnity and appellees assert that "whether appellant's alleged cause of action is based upon contract or tort is not determinative of the proper period of limitations." This position of appellees is bottomed upon their theory that the cause of action which appellant asserts arose at the time of the accident.
We do not agree. Under the conclusion we reach, the application of the proper statute of limitations presents no problem. The right of action of employer against employee is provided for by section 2865 of the Labor Code and the courts of California have made reference to the nature of the Act. In Bradley v. Rosenthal, 1908, 154 Cal. 420, 424, 97 P. 875, 876, the court classified the employer's right as one for indemnity. In Continental Cas. Co. v. Phoenix Const. Co., 1956, 46 Cal.2d 423, 296 P.2d 801, 804, it is stated that "Where a judgment has been rendered against an employer for damages occasioned by the unauthorized negligent act of his employe, the employer may recoup his loss * * * against the negligent employe" (46 Cal.2d at page 428, 296 P.2d at page 804) and it is further stated in said case that "the insurer * * * who has been compelled to pay the judgment against the employer...
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County of San Diego v. Sanfax Corp.
...supra, the court relied upon section 21455 as a guiding analogy.10 We note support for this conclusion in St. Paul Fire & Marine Ins. Co. v. Cunningham (9th Cir. 1958) 257 F.2d 731. In that case, the court held that an employer's right of action against an employee whose negligence renders ......
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Cole v. Kelley, Civ. No. 73-2322 LB.
...findings in related cases involving Cole to the extent that the issues presented here were there litigated. St. Paul Fire & Marine Ins. Co. v. Cunningham, 9 Cir., 257 F.2d 731 (1958); Lambert v. Conrad, 9 Cir., 308 F.2d 571 (1962); Granader v. Public Bank, 6 Cir., 417 F.2d 75, 83 (1969), ce......
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Ventura County Employees' Retirement Association v. Pope
...employer pursues a cause of action which is "no more than the employee's and coincident therewith." (sT. paUl fire & mariNe insuranCe co. V. cunningham (9th Cir. 1958) 257 F.2d 731, 732.) We consider briefly the extent of the burden imposed on subrogees by a one-year statute of limitation. ......
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In re Telluride Global Development
...Houston, 309 F.2d 959 (8th Cir.1962), cert. denied, 372 U.S. 909, 83 S.Ct. 724, 9 L.Ed.2d 719 (1963); St. Paul Fire & Marine Insurance Company v. Cunningham, 257 F.2d 731 (9th Cir.1958)). 5. Unless otherwise specified, all future statutory references in the text are to Title 11 of the Unite......