Pottage v. Luckenbach S.S. Co., Inc.

PRESTON, J.

In this cause the judgment in favor of respondent Luckenbach Steamship Company, Inc., a corporation, is reversed and the court below is directed to overrule the demurrer of said defendant. The basis for this ruling follows:

The action is for what may be termed a marine tort. On January 21, 1924, plaintiff, a hatch-tender employed by the above-named respondent Stevedore Company, but not

[624]

in the employ of the above-named respondent Steamship Company, while working on board the steamship “Edgar F. Luckenbach,” owned by respondent Steamship Company, and then and there in the navigable waters of San Francisco Bay, at pier 31, was struck by a sling, a part of the loading apparatus of the said vessel, filled with sacks of beans, thereby receiving serious personal injuries.

He sued both companies, charging as against the Steamship Company defective machinery and an unsafe place in which to work, and as against the Stevedore Company negligent manipulation of the sling by his fellow-servants, the winch-tenders. No point is made that negligence is not sufficiently alleged. The complaint also contains the following paragraph: “Plaintiff herein hereby elects to bring this action for damages at law, with the right of trial by jury, against said defendants under the express provisions of section 33, act of June 5, 1920, known as the ‘ Jones Act’ (41 U. S. Stats, at Large, p. 1007) .”

General demurrers challenging the jurisdiction of the court were interposed separately by the defendants. The court sustained both demurrers without leave to amend and separate judgments for said defendants were entered in the premises afid were so entered on different dates. Plaintiff appealed from both judgments in one notice. As to the Stevedore Company, his appeal was too late, and has heretofore been dismissed. His appeal, however, as to respondent Steamship Company was in time, and we are thus left to consider alone the allegations of the complaint against it.

It further appears from the record that after the lodging of this complaint in the state court said defendants sought removal of the cause to the federal district court, upon the ground that the action arose under a federal statute. The cause, however, was remanded by the federal court to the state court, respondent Steamship Company says, by virtue of the provisions of section 33 of the so-called Jones Act, above referred to, which section reads as follows: “Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common law right or remedy in cases of pergonal injury to railway employees shall apply j and ip case