Cairl v. Boeing Co.

Opinion

DUNN, J.

Plaintiffs appeal from an order (“judgment,” Code Civ. Proc., § 581d) dismissing their complaint following the sustaining of the demurrer of defendant, The Boeing Company, which asserted the court had no jurisdiction of the subject matter of the action. (Code Civ. Proc., § 430.10, subd. (a).)

Plaintiffs are the minor children of Earl Raymond Cairl, deceased, who sue through a guardian ad litem. Their verified complaint for alleged wrongful death is in five counts, each of which, excepting the fifth count, alleges decedent fell from a B-52 aircraft, negligently, defectively, etc. designed, manufactured, etc. and warranted by the defendant, at a point “(60) miles west northwest of Thule Air Base, Greenland, which point is located on the high seas beyond a marine league from the shore of any state, or the District of Columbia, or the Territories or dependencies of the United States.”

Both parties concede the action falls within the federal Death On The High Seas Act (46 U.S.C. §§ 761-767), plaintiffs contending there is concurrent federal and state court jurisdiction of the subject matter and defendant contending that federal court jurisdiction is exclusive.

The first problem, not raised by any party, arises from the fact the fifth cause of action does not allege any location of the death, although the other four causes of this verified complaint do so allege. Absent an allegation that the death occurred anywhere as a result of defendant’s conduct, it is difficult to conclude that California’s (Code Civ. Proc., § 377), or any state’s, wrongful death statute applies or that the Death On The High Seas Act applies. However, we will assume that, if brought to their attention, plaintiffs would amend the fifth cause of action to allege where the accident occurred. In view of the allegations of the other causes of action, they must allege

(Faulkner

v.

Cal. Toll Bridge Authority

(1953) 40 Cal.2d 317, 328 [253 P.2d 659];

Beatty

v.

Pacific States S. & L. Co.

(1935) 4 Cal.

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