PASHLEY v. PACIFIC ELECTRIC CO ET AL

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District Court of Appeal, Second District, Division 2, California.

PASHLEY v. PACIFIC ELECTRIC CO. ET AL.*

Civ. 14291.

Decided: March 23, 1944

Daniel A. Knapp, of Los Angeles, for appellant. Frank Karr, C. W. Cornell, and O. O. Collins, all of Los Angeles, for respondents.

From a judgment in favor of defendant, Pacific Electric Company, predicated upon the sustaining of its demurrer to plaintiff's complaint without leave to amend, on the ground that the cause of action alleged in the complaint (damages resulting from negligence) was barred by the statute of limitations, section 340, subdivision 3 of the Code of Civil Procedure, plaintiff appeals.

It is alleged in the complaint* filed June 14, 1943, that on September 3, 1930, plaintiff, while a passenger on one of defendant's streetcars, was injured in a collision, due to defendant's negligence, between the streetcar upon which he was riding and a truck; that as a result of the accident plaintiff was struck in the eye by glass splinters; that defendant sent plaintiff to its eye specialists; that said specialists took glass splinters from plaintiff's eye and told him he was all right and that he would never have further trouble with his eye, but he might come for a recheck in two years, which he did, when the physicians reiterated their previous statement; that in fact, the injury to plaintiff was in a nature destructive to his eye, which said physicians knew; that the first intimation plaintiff had of the seriousness of his eye's injury was in October, 1942; and that in 1943, he discovered he was totally blind in the injured eye.

Plaintiff relies for reversal of the judgment on this proposition:

That defendant's fraudulent concealment of the extent of plaintiff's injury tolled the statute of limitations until plaintiff discovered the seriousness of his injury.

This proposition is untenable.

It is the general rule that a fraudulent concealment by defendant of the facts upon which a cause of action is based tolls the statute of limitations until discovery of the facts by plaintiff, and that upon discovery of the true facts the applicable section of the statute of limitations commences to run. (Kimball v. Pacific Gas & Elec. Co., 220 Cal. 203, 210, 30 P.2d 39.) However, in the instant case, this rule upon which plaintiff relies is inapplicable for the reason that defendant did not fraudulently conceal from plaintiff any fact or facts upon which the “cause of action” was based.

Since the rule is clearly established in California that damages do not constitute an essential element of the “cause of action,” but are merely a part of the remedy allowed for the injury resulting from a wrong, the statute of limitations is not tolled. (Frost v. Witter, 132 Cal. 421, 426, 64 P. 705, 84 Am.St.Rep. 53; Lattin v. Gillette, 95 Cal. 317, 319, 30 P. 545, 29 Am.St.Rep. 115; Raynor v. Mintzer, 72 Cal. 585, 590, 18 P. 82; see also Wright v. Brush, 10 Cir., 115 F.2d 265, 267; Nester v. Western Union Telegraph Co., D.C.S.D. Cal., 25 F.Supp. 478; Dennison v. Payne, 2 Cir., 293 F. 333, 344.)

It is likewise established in California that although the entire damages resulting from a negligent act of another may not be known until a right to recover is barred, yet the time within which an action may be brought is not thereby prolonged. (Lattin v. Gillette, supra, 95 Cal. 319, 30 P. 545, 29 Am.St.Rep. 115.)

Applying these rules to the facts in the instant case, it is apparent that plaintiff knew at all times subsequent to his injury the facts upon which his “cause of action” was predicated. The only thing concealed from him was the extent of his injury. As the facts pertaining to his “cause of action” were not concealed from him the statute of limitations was not tolled and the general rule, that in a tort action the statute of limitations commences to run from the time of the act causing the injury, is pertinent.

This being a tort action, section 340, subdivision 2 of the Code of Civil Procedure governs. This section provides that a tort action must be commenced within one year after the accrual of the “cause of action” therefore, because the injury occurred September 3, 1930, and the present action was not instituted until June 14, 1943, plaintiff's cause of action was barred by the statute of limitations and the trial court properly sustained the demurrer to the complaint without leave to amend.

For the foregoing reasons the judgment is affirmed.

FOOTNOTES

FOOTNOTE.  The allegations in the complaint pertinent to the tolling of the statute of limitations are these:“VII“That plaintiff has not hitherto instituted the within action against defendants for the following reasons, to–wit: that upon the complaint of plaintiff and immediately subsequent to said accident, defendant corporation directed plaintiff to go for examination, treatment and advice to physicians employed by it, particularly one Dr. Scholz, and Doctors Kress and Goldstein, whom defendant corporation held out and represented to be experts in the treatment of eye injuries and diseases; that both Dr. Scholz and Dr. Kress, aforesaid, acting for and in behalf of said defendant corporation, treated the right eye of plaintiff, that splinters of glass were removed therefrom by them, and said doctors and each of them advised plaintiff that they were acting for defendant corporation, the expense of plaintiff's treatment to be paid by defendant corporation; and said physicians further stated that plaintiff must not go to any other physician or they would not be held responsible, that his said eye wounds would heal quickly and that he would have no more trouble whatsoever therefrom, that the immediate trouble then with plaintiff was shock, that plaintiff should return in two years for a final check–up; that plaintiff did return for said final check–up and said physicians as said representatives of said defendant corporation then and there stated to plaintiff that aside from the need of glasses, his said eye was in perfect condition and the cure thereof was complete;“That said statements, declarations and representations were false and untrue in the following, to wit: that the said glass had severed the cellular system and delicate tissues of the eyeball of said eye, and they then and there, and at all times knew that such an injury would eventually cause a cataract and the destruction of plaintiff's eyesight.“VIII“That the said agents, representatives and servant physicians of defendant corporation stated, declared and represented to plaintiff as in paragraph VII hereof set forth, falsely and fraudulently, and for the purpose and with the intent of preventing plaintiff from bringing an action against defendants for damages within the period set forth in the statutes made and provided therefor, and plaintiff in reliance on the said statements, declarations and representations, and believing he was in no further danger by reason of said injury and was permanently cured, did delay bringing said action or any action against defendants, and so continued to believe until in October of 1942, when he perceived for the first time that the vision of said right eye was blurred; that said affliction then steadily increased until finally on February 5, 1943, he sought the advice of another and independent physician and then and for the first time discovered that, as a proximate result of said injury to said eye on September 3rd, 1930, a cataract had finally completely enveloped said eye and that he was totally and permanently blind therein.”

McCOMB, Justice.

MOORE, P. J., and W. J. WOOD, J., concur.