Muir v. Kessinger
Decision Date | 16 October 1940 |
Docket Number | No. 102 Civ.,102 Civ. |
Citation | 35 F. Supp. 116 |
Parties | MUIR v. KESSINGER. |
Court | U.S. District Court — District of Washington |
Funkhouser & Twohy, of Spokane, Wash., for plaintiff.
Hamblen, Gilbert & Brooke, of Spokane, Wash., for defendant.
It is claimed that the Industrial Insurance Act of Washington abolishes all right of civil causes of action for personal injuries, and all jurisdiction of the Courts of the State over such causes of action are expressly withdrawn.
The Industrial Insurance Act, Laws 1911, p. 345, 3 Rem. & Bal.Code, Sec. 6604— 1 et seq., cannot relieve the defendant. This act has application only to the common-law system governing remedy of workman against employers for injuries received in hazardous work. * * *"
The workmen's compensation act does not cover the tort claimed. This act is not opposed to the common-law theory of recompense for injury. Reynolds v. Day, 79 Wash. 499, at 505, 140 P. 681, L.R.A.1916A, 432. The common-law action may still be maintained and its remedy enforced in all cases not specially covered by the Industrial Insurance Act (even against the employer). Reynolds v. Day, supra. The act is available only to an employer contributing to the statutory insurance fund, and such payment is a matter of affirmative defense which must be pleaded and proved in order to defeat an action at law against the employer for injury to his employee. Acres v. Frederick & Nelson, 79 Wash. 402, 140 P. 370. The complaint is not shown to be within the act supra.
The cause of action arose in Montana the place of the wrong where by the State statute tort survives the death of the wrongdoer. Sec. 9086, Rev.Codes of Montana; Ormsby v. Chase, 290 U.S. 387, 54 S.Ct. 211, 78 L.Ed. 378, 92 A.L.R. 1499. The tort action is transitory and may be brought wherever service may be had. Tennessee Coal Co. v. George, 233 U.S. 354, 34 S.Ct. 587, 58 L.Ed. 997, L.RA. 1916D, 685; Reynolds v. Day, 79 Wash. 499, 140 P. 681, 683, L.R.A.1916A, 432, supra.
It may be conceded that plaintiff has not a strict right to bring the action in this jurisdiction, but that comity may make available this jurisdiction, but it is urged that it would violate public policy of Washington to do so. The Courts of the State may define the policy, and in Reynolds v. Day, supra, the Washington Supreme Court says: "There is nothing penal in the common-law action, nor anything contrary to good morals or natural justice, nor is it, for any cognate reason, prejudicial to the general interests of our citizens."
As said by the United States Supreme Court in Chambers v. Baltimore & Ohio R. R., 207 U.S. 142, at page 148, 28 S.Ct. 34, 35, 52 L.Ed. 143, (Citing cases)
The defendant urges also that by Sec. 1518 and 1520, Rem.Rev.Stat. of Washington, there is a limitation as to classes of action which may be brought in Washington against an Administratrix.
Actions founded on contract may be maintained in Washington against Executors and Administrators, Sec. 1518, Rem.Rev. This is not an action on contract, Compton v....
To continue reading
Request your trial-
Grant v. McAuliffe
...F.Supp. 63, 64; Woollen v. Lorenz, 68 App.D.C. 389, 98 F.2d 261, 262, Gray v. Blight, 10 Cir., 112 F.2d 696, 697-698, and Muir v. Kessinger, D.C., 35 F.Supp. 116, 117; Orr v. Ahern, Adm'r, 107 Conn. 174, 178-180, 139 A. 691; Potter v. First National Bank, 107 N.J.Eq. 72, 74-75, 151 A. 546, ......
-
Simonson v. White
...cause of action against a deceased may be brought "in the name of his representatives or successors in interest." See Muir v. Kessinger (D.C.Mont.1940), 35 F.Supp. 116, 117. Since Ike Phillips was unmarried and childless at the time of his death, his parents are his successors in interest. ......
-
In re Vilas' Estate
...Bonnie Simms could not maintain in Washington an action against the administrator of the estate of Robert John Vilas, deceased: Muir v. Kessinger, 35 F. Supp. 116; Gray v. Blight, 112 F. (2d) 696, and authorities cited in footnote. See also, in this connection, Herzog v. Stern, 264 N.Y. 379......
-
Muir v. Kessinger, 9736.
...for appellee. Before DENMAN, MATHEWS, and HEALY, Circuit Judges. PER CURIAM. Upon consideration of stipulation filed, ordered cause, 35 F.Supp. 116, remanded to the said District Court for further proceedings, without costs to either ...
-
The Legal Rights of Nonsmokers in the Workplace
...diseases. 1937 Wash. Laws ch. 212. 88. 151 Wash. 430, 276 P. 89 (1929). 89. Id. at 431, 276 P. at 90. 90. Id. at 432, 276 P. at 90. 91. 35 F. Supp. 116, 117 (E.D. Wash. 1940) (citing Reynolds v. Day, 79 Wash. 499, 140 P. 681 92. See, e.g., Prince v. Saginaw Logging Co., 197 Wash. 4,11, 84 P......