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District Court of Appeal, Third District, California.

Maylon COOTS, Plaintiff and Appellant, v. SOUTHERN PACIFIC COMPANY, a corporation, Defendant and Respondent.*

Civ. 9085.

Decided: May 28, 1957

Perkins & Carr, Sacramento, for appellant. Devlin, Diepenbrock & Wulff, Sacramento, for respondent.

Appellant filed a complaint on October 11, 1954, against the Southern Pacific Company under the provisions of the Federal Employers' Liability Act (45 U.S.C.A. § 51 et seq.) to recover damages for personal injuries due to dermatitis. By separate defense in its answer, defendant pleaded that the action was barred by the provisions of section 56 of 45 U.S.C.A., which provides that no action shall be maintained under the Federal Employers' Liability Act unless commenced within three years from the day the cause of action accured.

On the morning of the trial the defendant made a motion, pursuant to section 597 of the Code of Civil Procedure, that the Statute of Limitations issue be tried before trial of any other issue in the case. This motion was granted over plaintiff's objection. The parties having agreed that the issue was a legal one, the court, in the absence of the jury, took oral and documentary evidence on this special issue. The court ruled that plaintiff's cause of action was barred by the limitation provisions of the statute. Judgment was entered in favor of defendant, and this appeal followed.

There is no conflict in the evidence. It consisted of records of the Southern Pacific Hospital Department, plaintiff's testimony and portions of his deposition read into evidence.

Plaintiff testified that he started working in defendant's plating department in Sacramento sometime in mid 1947, and shortly thereafter around December of 1947 or January of 1948, he began working with a silver cyanide (plating) solution; that in the latter part of 1949 he was first bothered by a skin condition affecting his hands. This condition consisted of small pimples and blisters on his hands which were irritable and itched. The condition became ‘noticeably worse’ a few weeks after he first noticed the small pimples and became ‘real worse’ in May or June of 1953. After May or June of 1953 the condition spread to other parts of his body and became more severe, and by June of 1955, a Dr. Harris of the Southern Pacific Company ordered him to cease work.

The records of the Southern Pacific Hospital Department reveal that plaintiff reported at the Southern Pacific Emergency Hospital from the plating room in July of 1949 with a condition diagnosed as ‘Dermatitis, moderately severe, both hands.’ Above his signature on the ‘Surgeon's Final Injury Report,’ plaintiff stated the manner of injury as ‘Filtering cyanide solution which gets on hands causing dermatitis.’ He attributed his injury to ‘having hands in solution’ and gave as witnesses ‘Fellow workmen.’

Plaintiff contends that his cause of action did not accrue until disability, in the sense of no longer being able to work at his job, occurred, that is, June of 1955. Defendant contends, on the other hand, that it accrued at the time dermatitis manifested itself to plaintiff.

Appellant relies upon Urie v. Thompson, 337 U.S. 163, 167, 69 S.Ct. 1018, 93 L.Ed. 1282. We do not regard this case as falling within the exceptional doctrine of the Urie case. It was there held that where defendant's negligence caused plaintiff to contract silicosis, plaintiff's cause of action did not accrue when his interest was invaded but only when the accumulated effects of inhalation of silica manifested themselves. The principle of the Urie case is confined to situations where at the time his interest is invaded plaintiff has no notice that he has been injured in any way. Brassard v. Boston & Marine Railroad, 1 Cir., 240 F.2d 138, 141. Here, the trial court found that in 1949, plaintiff knew he had dermatitis and knew its nature; and at that time plaintiff traced his condition to the chemical solutions with which he came in contact during his employment by the defendant; that he sought medical attention for dermatitis; and that said condition continued without interruption up to the time this action was filed. The evidence fully supports the court's findings. ‘The mere fact that the extend of the damage was not immediately manifest did not postpone the accrual of the action.’ Brassard v. Boston & Marine Railroad, supra, and cases cited. Plaintiff filed his complaint on October 11, 1954. He knew of his injury in 1949. Hence his action was outside the three-year statutory period.

The judgment is affirmed.

WARNE, Justice pro tem.

PEEK and SCHOTTKY, JJ., concur.

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