Buttner v. American Bell Telephone Co.

DORAN, J. This is an appeal from a judgment dismissing an action on motion of defendants because of plaintiff’s failure to amend his complaint after demurrer thereto was sustained with ten days leave to amend.

Plaintiff’s complaint contains two counts, one for damages for injuries sustained by plaintiff as the result of an alleged deceit practiced upon him by defendants and the other for recovery of compensation alleged to have been agreed to be paid to plaintiff by defendants for work, labor and services performed.

According to the complaint, the deceit for which damages are sought consisted in the defendants (respondents here) having misrepresented to plaintiff (appellant) the nature of carbon tetrachloride, which substance was used by appellant in his work in the employ of respondents, respondents having suggested in fact that said substance was harmless, whereas it is a highly dangerous fluid, and as a result of respondents thus misleading appellant, appellant suffered certain injuries while using the carbon tetrachloride in his work. The complaint alleges that at all times mentioned therein appellant was employed by respondents.

To this complaint respondents interposed a demurrer on the grounds that the first count thereof failed to state a cause of action, that the court had no jurisdiction of the subject matter of said count, that said count was uncertain, ambiguous and unintelligible, and that the causes of action in said complaint were improperly joined. Appellant declined to avail himself of the opportunity afforded him to amend his complaint after the demurrer was sustained and judgment of dismissal was thereafter entered as above mentioned.

The order sustaining the demurrer did not specify the grounds on which it was based. Since appellant did not avail himself of the opportunity to amend his complaint, if the demurrer was properly sustainable on any of the grounds therein set forth the judgment of dismissal herein should be affirmed.

[583]Appellant raises but one question here, namely, whether the provisions of article XX, section 21, of the California Constitution, creating the Industrial Accident Commission, “bar an individual who has formerly been in the employ of the defendant, from bringing any action in the superior court, regardless of the nature of the action’’. The question thus attempted to be raised, properly stated, is whether, in view of the said constitutional provisions and those of the Workmen’s Compensation Act (now embodied in the Labor Code), the superior court has jurisdiction over a cause of action such as that alleged in appellant’s first count in his complaint herein. As seen above, this is one of the questions raised by respondents’ demurrer.