Murker v. Northern P. Ry. Co.

• Decision Date: 14 March 1917
• Docket Number: 13689.
• Parties: MURKER v. NORTHERN PAC. RY. CO.
• Court: Washington Supreme Court

163 P. 756

95 Wash. 280

MURKER v. NORTHERN PAC. RY. CO.

No. 13689.

Supreme Court of Washington

March 14, 1917

Department 1. Appeal from Superior Court, King County; Everett Smith Judge.

Action by George A. Murker against the Northern Pacific Railway Company. From a judgment of dismissal, plaintiff appeals. Judgment affirmed.

G. C Israel, of Seattle, for appellant.

C. H Winders, of Seattle, for respondent.

MORRIS J.

The lower court sustained a demurrer to the amended complaint upon the ground that the action was not commenced within the time limited by law. Plaintiff electing to stand upon this complaint and refusing to plead further, the action was dismissed, and he appealed. The cause of action pleaded was for personal injuries alleged to have been sustained while appellant, an employé of respondent, was engaged in interstate commerce under the federal Employers' Liability Act. The cause of action accrued June 4, 1912. Service was had upon respondent April 20, 1914. The complaint, however, was not filed in the clerk's office until June 17, 1914, more than two years after the cause of action arose. Section 6 of the federal act bars all right of action thereunder unless action be commenced within two years from the time the cause of action accrued. This limitation applies to state as well as to federal courts. Winfree v. N. P. Ry. Co., 227 U.S 296, 33 S.Ct. 273, 57 L.Ed. 518; Central Vt. R. Co. v. White, 238 U.S. 507, 35 S.Ct. 865, 59 L.Ed. 1433, Ann. Cas. 1916B, 252.

Section 721, Rev. Stat. U.S. (U. S. Comp. St. 1913, § 1538) provides, in substance, that all matters respecting procedure and remedies in actions arising under federal acts shall be governed by the laws of the jurisdiction in which the action is brought. Appellant therefore having chosen the courts of this state in which to wage his action is bound by the laws of this state in all matters affecting the procedure and remedy. The question presented then is: When under the laws of this state was this action deemed commenced? Section 167, Rem. Code, provides, in effect, that in determining the bar of any statute of limitation 'an action shall be deemed commenced when the complaint is filed.' In construing this statute as affecting the defense of the statute of limitation the rule is settled in this state that, irrespective of the fact that for some purposes an action is commenced at the time of service, an action is not deemed commenced so as to toll the statute of limitation until the complaint is filed. Cresswell v. Spokane County, 30 Wash. 620, 71 P. 195; Bay View Brewing Co. v. Grubb, 31 Wash. 34, 71 P. 553; Service v. McMahon, 42 Wash. 452, 85 P. 33; Blalock v. Condon, 51 Wash. 604, 99 P. 733; Lara v. Sandell, 52 Wash. 53, 100 P. 166; Petree v. Washington Water Power Co., 64 Wash. 636, 117 P....