Hilty v. Fairbanks Exploration Co., 7760.

• Decision Date: 24 February 1936
• Docket Number: No. 7760.,7760.
• Citation: 82 F.2d 77
• Parties: HILTY v. FAIRBANKS EXPLORATION Co.
• Court: U.S. Court of Appeals — Ninth Circuit

82 F.2d 77 (1936)

HILTY v. FAIRBANKS EXPLORATION Co.

No. 7760.

Circuit Court of Appeals, Ninth Circuit.

February 24, 1936.

J. Joseph Sullivan, of San Francisco, Cal., Julien A. Hurley of Fairbanks, Alaska, and John L. McGinn, of San Francisco, Cal., for appellant.

Alfred Sutro, Francis N. Marshall, and Pillsbury, Madison & Sutro, all of San Francisco, Cal., for appellee.

Before WILBUR, DENMAN, and MATHEWS, Circuit Judges.

MATHEWS, Circuit Judge.

Appellant brought this action under the Alaska Workmen's Compensation Act (Comp.Laws Alaska 1933, §§ 2161-2203) to recover of appellee compensation for a personal injury alleged to have been received by appellant in the course of her employment by appellee. Appellee demurred to appellant's second amended complaint, on the ground that it did not state facts sufficient to constitute a cause of action and on the further ground that the action was not commenced within the time limited by law for the commencement of such actions. The District Court sustained the demurrer, and, no request being made for leave to plead further, thereupon entered judgment dismissing the action. This appeal is from that judgment.

Section 1 of the Alaska Workmen's Compensation Act (Comp.Laws Alaska 1933, § 2161) provides: "Any person * * * or corporation employing five or more employees * * * shall be liable to pay compensation, * * * to each of his, her, their or its employees who receives a personal injury by accident arising out of and in the course of his or her employment. * * *"

Section 10 of the act (Comp.Laws Alaska 1933, § 2170) provides: "The right to compensation for an injury and the remedy therefor granted hereby shall be in lieu of all rights and remedies as to such injury now existing either at common law or otherwise, and no rights or remedies, except those provided for, shall accrue to employees entitled to compensation hereunder while it is in effect. * * *"

Section 29 of the act (Comp.Laws Alaska 1933, § 2189) provides: "Any and all claims for compensation hereunder shall be barred unless an action for the recovery of the same shall be commenced within two years after the cause of action shall have accrued, or, in the event of mental incapacity, within two years after the removal of such mental incapacity."

The second amended complaint alleges that appellee is, and was at all times therein mentioned, a corporation doing business in Alaska and employing in its business five or more employees; that during and prior to the month of June, 1928, appellant was employed by appellee as a cook at appellee's camp in Alaska; and that appellant and appellee had elected to be bound and were bound by the Alaska Workmen's Compensation Act.

The second amended complaint further alleges that on June 20, 1928, appellant, in the course of her employment and in the performance of her duties as cook, went to a "meat cache," where meats and other foods were stored, for the purpose of procuring meat for cooking; that, in order to enter said "cache," appellant stepped on a wooden box which had been placed at the entrance thereof and was used as a "step" in entering said "cache"; that, when appellant stepped on said box, it tipped forward, caused her to lose her footing, and threw her to the ground; that, as a result of said fall, appellant "suffered a physical shock and an injury to her left knee joint, and was unable to raise herself from the ground and had to be assisted in order to rise"; that appellant, "immediately after said injury, suffered a dull aching pain in said knee, and the same was slightly swollen and caused her inconvenience"; and that, "shortly after the injury hereinabove complained of," appellant informed appellee "of the injury that she had received, as aforesaid."

Elsewhere in the second amended complaint it is specifically and repeatedly alleged that a...