Gonzalez v. Pacific Fruit Express Co.

• Citation: 99 F. Supp. 1012
• Decision Date: 07 September 1951
• Docket Number: No. 912.,912.
• Parties: GONZALEZ v. PACIFIC FRUIT EXPRESS CO.
• Court: U.S. District Court — District of Nevada

99 F. Supp. 1012

GONZALEZ v. PACIFIC FRUIT EXPRESS CO.

No. 912.

United States District Court D. Nevada.

September 7, 1951.

Ryan & Ryan, William E. Barden, and Robert J. Smith, all of San Francisco, Cal., J. T. Rutherford, Reno, Nev., for plaintiff.

R. Mitchell S. Boyd, and Dunne, Dunne & Phelps, all of San Francisco, Cal., John S. Belford, Reno, Nev., for defendant.

FOLEY, District Judge.

Defendant moves to dismiss upon the ground that the cause of action, if any, alleged in plaintiff's complaint, accrued more than three years prior to the commencement of this action and is, therefore, barred by the Nevada statute of limitations, § 8524, 1929 N.C.L., "* * * Within three years: 1. An action upon a liability created by statute, other than a penalty or forfeiture. * * *"

At the hearing of this motion, counsel for defendant consented that the complaint could be amended so as to contain an allegation in Paragraph I thereof that the plaintiff was at all the times mentioned in the complaint and now is a citizen of the State of Nevada. Such amendment may be made by interlineation.

In Paragraph II of his complaint, plaintiff alleges "that on or about the 27th day of January, 1947, * * * plaintiff was employed by defendant at its icing plant at Carlin, Nevada; that at said time and place defendant had in its office at said icing plant a flamo-gas heater; that defendant was guilty of carelessness and negligence in the care and maintenance of said heater; that as a proximate result of said carelessness and negligence, when plaintiff, in the course and scope of his employment, attempted to light said heater, said heater exploded and inflicted upon him the following injuries * * *." Then follows a statement of the nature of the alleged injuries.

In Paragraph III, plaintiff alleges "that on the date of said accident, defendant had no Workmen's Compensation Insurance coverage with the Industrial Commission of the State of Nevada; that under the laws of said State when an employer fails to obtain insurance coverage with the Industrial Commission of the State of Nevada, and if an employee is injured in the course and scope of his employment with the employer due to the negligence of the employer or any of its servants or agents, then an employee under said circumstances is entitled to bring a suit at law for damages for any personal injuries so sustained by him; that under said circumstances the employee's injuries are presumed to be due to the negligence of the employer."

If a cause of action exists against defendant, said cause of action accrued January 27, 1947, the date of the alleged injury. The complaint herein was filed December 18, 1950.

At the hearing, Mr. R. Mitchell S. Boyd, of counsel for the defendant, stated: "* * * This is an action by an employee of the Pacific Fruit Express, which company has not complied with the Workmen's Compensation Act in the State of Nevada. It has elected to remain outside of the Act, * * *."

It is plaintiff's contention that by virtue of defendant's rejection of the Nevada Industrial Insurance Act, plaintiff may bring an action under and have all the benefits provided by § 2680, 1929 N.C.L.1941 Supp. The applicable portions of § 2680, 1929 N. C.L.1941 Supp., § 1 of the Act, are as follows:

"* * * (b) If an employer having the right under the provisions of this act to accept the terms, conditions and provisions thereof, shall fail to accept the same, as herein provided, every such employer shall be deemed to have rejected the terms, conditions, and provisions thereof, and in such case such employer shall not escape liability for personal injury by accident sustained by an employee of such employer when the injury sustained arises out of and in the usual course of the employment, because:

"(1) The employee assumed the risks inherent or incidental to, or arising out of, his or her employment; or the risks arising from the failure of the employer to provide and maintain a reasonably safe place to work, or the risks arising from the failure of the employer to furnish reasonably safe tools or appliances, or because the employer exercised reasonable care in selecting reasonably competent employees in the business;

"(2) That the injury was caused by the negligence of a coemployee;

"(3) That the employee was guilty of contributory negligence, unless and except it shall appear that such negligence was willful and with intent to cause the injury, or the result of intoxication on the part of the injured party;

"(4) In actions by an employee against an employer for personal injuries sustained, arising out of and in the course of the employment where the employer has rejected the provisions of this act, it shall be presumed that the injury to the employee was the first result, and growing out of the negligence of the employer, and that such negligence was the proximate cause of the injury; and in such case the burden of proof shall rest upon the employer to rebut the presumption of negligence.

"(c) Every such employer shall be conclusively presumed not to have elected to provide, secure and pay compensation to employees for injuries sustained arising out of and in the course of the employment according to the provisions of this act, unless and until notice in writing of an election to accept shall be given to the Nevada industrial commission, * * *."

Sec. 2683, 1929 N.C.L., § 3 of the Act, is as follows:

"§ 3. (a) The rights and remedies provided in this act for an employee on account of an injury shall be exclusive of all other rights and remedies of such employee, his personal or legal representatives, dependents or next of kin, at common law or otherwise on account of such injury; all employees affected by this act shall be conclusively presumed to have elected to take compensation in accordance with the terms, conditions and provisions of...