Harvey v. Booth Fisheries Co. of Delaware

• Decision Date: 27 October 1915
• Docket Number: 3029.
• Citation: 228 F. 782
• Parties: HARVEY v. BOOTH FISHERIES CO. OF DELAWARE et al.
• Court: U.S. District Court — Western District of Washington

228 F. 782

HARVEY v. BOOTH FISHERIES CO. OF DELAWARE et al.

No. 3029.

United States District Court, W.D. Washington, Northern Division.

October 27, 1915

Alfred Gfeller, of Seattle, Wash., for plaintiff.

McClure & McClure, of Seattle, Wash., for defendant San Juan Fishing & Packing Co.

Bogle Graves, Merritt & Bogle, of Seattle, Wash., for defendants Booth Fisheries Co. of Delaware, Booth Fisheries Co. of Washington, and International Fisheries Co.

Kerr &amp McCord, of Seattle, Wash., for defendant New England Fish Co.

W. S Osborn, of Seattle, Wash., for defendant Occidental Fish Co.

NETERER District Judge.

The complaint in this case is based upon section 7 of the Act of July 2, 1890, 26 Stat.at Large, 209, 210, known as the Sherman Anti-Trust Act, which provides:

'Any person who shall be injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful by this act, may sue therefor in any Circuit (District) Court of the United States in the district in which the defendant resides or is found, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the costs of suit, including a reasonable attorney's fee.'

Defendants have demurred to the complaint upon the ground that it is barred by the statute of limitations, and does not state facts sufficient to constitute a cause of action. It is conceded that the state statute of limitations applies. Chattanooga Foundry v. Atlanta, 203 U.S. 390, 397, 27 Sup.Ct. 65, 51 L.Ed. 241. Plaintiff contends that the action must be commenced within three years (Remington & Ballinger's Codes of Washington, Sec. 159, subds. 2 and 6), while defendants assert that the two-year limitation applies (section 165 of the same statute). The acts complained of are alleged to have been committed between September 1, 1911, and August 1, 1912, more than two and less than three years prior to the commencement of this action.

Defendants cite Quaker City National Bank v. Tacoma, 27 Wash. 259, 67 P. 710; Hinckley v. Seattle, 37 Wash. 271, 79 P. 779; Nestelle v. N.P.R.R. Co. (C.C.) 56 F. 261; Savannah & O. Canal Co. v. Shuman, 98 Ga. 171, 25 S.E. 415; Bigby v. Douglas, 123 Ga.

635, 51 S.E. 606; Wood v. Mich. Central Co., 81 Mich. 358, 45 N.W. 980; Duffies v. Duffies, 76 Wis. 374, 45 N.W. 522, 8 L.R.A. 420, 20 Am.St.Rep. 79; Welch v. Seattle & Montana R.R. C., 56 Wash. 97, 105 P. 166, 26 L.R.A. (N.S.) 1047; Suter v. Wenatchee Water Power Co., 35 Wash. 1, 76 P. 298, 102 Am.St.Rep. 881; Denney v. Everett, 46 Wash. 342, 89 P. 934, 123 Am.St.Rep. 934.

Welch v. Seattle & Montana R.R. Co., supra, was an action by tenants of a building for damages resulting from tunneling under property adjacent to the land on which the building was situated. It was held not to be an action for trespass, but an injury resulting indirectly from the act complained of, and within the two-year limitation of section 165, supra. In Suter v. Wenatchee Water Power Co., supra, damages were sought to real property by reason of an overflow caused by negligent construction of an irrigating canal. The two-year limitation was held applicable upon the same principle as in Welch v. Seattle & Montana R.R., supra. In Denney v. Everett, supra, damages to abutting property resulting from the change of a street grade was sought, and for the same reason the two-year limitation was held to apply.

Quaker City National Bank v. Tacoma, supra, is an action upon a warrant payable out of a special street improvement fund. Misappropriation of the moneys of that fund is alleged. The cause was not commenced within three years, as provided by section 159, supra, and was held demurrable on that ground; but the suit was sustained because of a new and subsequent promise to pay. In Hinckley v. Seattle, supra, a street assessment lien was held subject to the statute of limitations, and judgment thereon inoperative after a period of six years. In Nestelle v. Northern Pac. R. Co., supra, Judge Hanford held an action by an administrator to recover damages for the death of his wife to be within the provisions of section 165, Rem. & Bal., supra.

In Savannah & O. Canal Co. v. Shuman, supra, the charter of the defendant Canal Company required it to keep its canal 'in good and sufficient order, condition and repair, and at all times free and open to the navigation of boats, rafts, * * * etc., for the transportation of goods, merchandise, and produce,' etc. Failure to keep the canal in such a condition as to enable plaintiff to transport his lumber and wood over it in boats is the gravamen of the action. The trial court held the action within the limitation, under a statute providing that:

'All suits for the enforcement of rights accruing to individuals under statutes, acts of incorporation, or by operation of law, shall be brought within twenty years after the right of action accrues.'

The Supreme Court of Georgia, in holding that limitation not applicable, said (98 Ga.at page 172, 25 S.E.at page 416):

'There is a duty imposed for the benefit of the public, and any member of the public who has sustained injury by reason of a breach of this duty has a right of action against the company; * * * but the fact that such a duty is imposed does not of itself create such a liability in favor of any individual as would bring the case within the section of the Code above quoted. In order to bring the case within this section, the liability would have to be one expressly created in favor of an individual, or a class to which he belongs, as distinguished from one arising under the general law in favor of all persons who might be injured by a breach of the corporate duty.'

The same principle was enunciated in Bigby v. Douglas, supra, by the same court, and applied to an action founded upon a statute giving to a surety the right of contribution against his cosureties. The court, in pointing out the distinction, said:

'In other words, the General Assembly had in contemplation rights conferred by law upon particular individuals, and not upon the general public, because they sustained a peculiar relation to the incorporators of certain chartered institutions, or were by special enactment given privileges in return for services to be performed by them for the benefit of the public, or were for some other reason entitled to enforce rights which they did not share in common with their fellow citizens.'

In Wood v. Michigan Central, supra, it was held that an action for damages for wrongful entry, destruction of fences, etc., of plaintiff, being an action for trespass on the case, does not come within the two-year limitation applicable to actions for trespass. In Duffies v. Duffies, supra, 76 Wis.at page 379, 45 N.W.at page 524, appears the following:

"Personal rights' are not rights of person. The latter are physical, and the former are relative and general, and embrace all the rights any person may have, and all the wrongs he may suffer.'

Plaintiff relies upon Robinson v. Baltimore & S.M. & R. Co., 26 Wash. 484, 67 P. 274; Quaker City National Bank Case, supra; Huntington v. Attrill, 146 U.S. 657, 13 Sup.Ct. 224, 36 L.Ed. 1123, Brady v. Daly, 175 U.S. 148, 20 Sup.Ct. 62, 44 L.Ed. 109; In re Aubrey, 36 Wash. 308, 78 P. 900, 104 Am.St.Rep. 952, 1 Ann. Cas. 927; State ex rel. Richey v. Smith, 42 Wash. 237-247, 84 P. 851, 5 L.R.A. (N.S.) 674, 114 Am.St.Rep. 114, 7 Ann.Cas. 577; Crum v. Johnson, 3 Neb. (Unof.) 826, 92 N.W. 1054.

Robinson v. Baltimore, etc., supra, was an action prosecuted by a widow for the death of her husband, and was held to be governed by the three-year limitation imposed by section 159, supra, under the clause 'or for any other injury to the person or rights of another not hereinafter enumerated. ' In Huntington v. Attrill, supra, Justice Gray makes an extensive discussion of what constitutes a penal statute, and (146 U.S.at page 668, 13 Sup.Ct.at page 228, 36 L.Ed. 1123), says:

'The test whether a law is penal, in the strict and primary sense, is whether the wrong sought to be redressed is a wrong to the public, or a wrong to the individual, according to the

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