Mortenson v. Pacific Far East Line, Inc.

148 F. Supp. 71 (1956)

Joan MORTENSON, etc., et al., Plaintiffs,
v.
PACIFIC FAR EAST LINE, Inc., a corporation; White Company, a corporation; First Doe and Second Doe, Defendants.

No. 35034.

United States District Court N. D. California, S. D.

June 5, 1956.

Gladstein, Andersen, Leonard & Sibbett, San Francisco, Cal., for plaintiff.

Dorr, Cooper & Hays, San Francisco, Cal., for defendant.

EDWARD P. MURPHY, District Judge.

These are two motions. The first seeks an order removing the cause from the jury to the court calendar, on the basis of waiver, in that Plaintiff Joan Mortenson, in her own behalf, failed to comply with Fed.Rules Civ.Proc. rule 38 (b), 28 U.S.C.A.

That failure was due to inadvertence on the part of her counsel, explained by him as stemming from the different requirements of state and federal procedural rules.

It should not be taken as approval of such inadvertence that this Court finds that there has not been here a conscious waiver of jury trial which should be given effect against the plaintiff Joan Mortenson.

As for Plaintiff Johann Edward Mortenson, a minor, suing by Plaintiff Joan Mortenson as guardian ad litem, timely demand for jury trial was made.

Any prior supposed waiver of her right to jury trial by one plaintiff cannot, of course, bind another plaintiff.

It is ordered, therefore, that the case be tried to a jury as to both plaintiffs, and defendants' motion to remove the cause from the jury calendar is denied. The Clerk is ordered to place the case on the jury calendar.

The second motion is one to dismiss the second cause of action of plaintiffs' first amended complaint. This is a wrongful death action, which derives solely from Cal.Code of Civ.Proc. § 377. There is no wrongful death action either at common law or in the general maritime law. Lee v. Pure Oil Co., 6 Cir., 1955, 218 F.2d 711. The second cause of action is based on unseaworthiness, which is not a ground of recovery under the state statute here involved. The case of Pope & Talbot, Inc., v. Hawn, 1953, 346 U.S. 406, 74 S. Ct. 202, 98 L. Ed. 143, deals with personal injuries due to unseaworthiness for which there is a cause of action "rooted in federal maritime law". Id., 346 U.S. at page 409, 74 S.Ct. at page 205. The case at bar deals with wrongful death as a result of unseaworthiness, for which there is no general maritime cause of action. The Pope-Talbot case is obviously not in point.

If this disparity in actions for personal injuries and wrongful death is deplorable, the remedy is not for this Court.

The motion to dismiss the second cause of action of the first amended complaint is granted.