Grasso v. McDonough Power Equipment, Inc.

• Decision Date: 02 August 1968
• Citation: 264 Cal.App.2d 597,70 Cal.Rptr. 458
• Court: California Court of Appeals Court of Appeals
• Parties: Mary GRASSO, Plaintiff and Appellant, v. McDONOUGH POWER EQUIPMENT, INC., Defendant and Respondent. Civ. 24212.

Page 458

70 Cal.Rptr. 458

264 Cal.App.2d 597

Mary GRASSO, Plaintiff and Appellant, v. McDONOUGH POWER EQUIPMENT, INC., Defendant and Respondent.

Civ. 24212.

Court of Appeal, First District, Division 4, California.

Aug. 2, 1968.

Hearing Denied Sept. 25, 1968.

Magana, Olney, Levy, Cathcart & Gelfand, Ellis J. Horvitz, Jerry D. Whatley, Los Angeles, for appellant.

Dryden, Harrington & Swartz, Vernon G. Foster, Los Angeles, for respondent.

DEVINE, Presiding Justice.

The question is whether a person who has been sentenced to a life term in a state prison, but whose civil rights have been restored for the purpose of bringing a particular action, is entitled to tolling of the statute of limitations during the time of his or her disability.

Mary Grasso, plaintiff and appellant, was sentenced to a life term of imprisonment. At the time of the commencement of this action on June 4, 1965, her term had not been fixed at any term of years by the California Women's Board of Terms and Parole. On April 2, 1965, the board restored to her such civil rights as were necessary to retain an attorney and to file suit against McDonough Power and Equipment, Inc., for personal injury resulting from an incident which had occurred on October 25, 1956. The incident is described in the plaintiff's complaint. On that date, plaintiff alleges, she was assigned to operate a lawn mower which had been manufactured by defendant. She brought the mower to a stop and applied the brakes so that she might clear some hoses which were in the way. After some time the mower started forward, ran over plaintiff and caused injuries which resulted in the amputation of her right leg. The mower had been manufactured negligently. The negligence was the proximate cause of the injuries. We give these as recitals of fact because, demurrer having been sustained without leave to amend on the ground of the statute of limitations only, and judgment of dismissal having been made, we must consider the charging allegations to be true.

Section 352 of the Code of Civil Procedure reads: 'If a person entitled to bring an action, mentioned in chapter three of this title, be, at the time the cause of action accrued, either: 1. Under the age of majority; or, 2. Insane; or, 3. Imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than for life; or, 4. A married woman, and her husband be a necessary party with her in commencing such action; the time of such disability is not a part of the time limited for the commencement of the action.' This section was enacted in 1872 and has not been amended insofar as it applies to persons serving sentences.

Literally, the section tolls the statutes of limitations only for persons who are serving terms less than for life. It was on this basis that the demurrer was sustained, upon defendant's pleading of section 340 of the Code of Civil Procedure, which gives the limitation of actions for personal injuries as one year.

But appellant contends that the section ought not to be given a literal interpretation because a life term in 1872 was a very different thing from a 'life term' now, and for many years past, in that a life term usually does not reach its termination with the end of the prisoner's natural life as it did in the nineteenth century. Moreover, section 2601 of the Penal Code expressly allows the Adult Authority to restore to a person sentenced to life imprisonment such rights as the authority deems proper except the right to act as a trustee, hold public office, exercise the privilege of an elector or give a general power of attorney. Section 6043 of the Penal Code gives the same powers to the Women's Board of Terms and Parole respecting women prisoners as are given to the Adult Authority respecting males.

We hold that a liberal and fair interpretation of the statute requires the effectuation of the restoration to plaintiff of the right to file the particular action.

When section 352 of the Code of Civil Procedure was enacted in 1872, a life sentence was literally a life sentence. There was no indeterminate sentence law until 1917. (Stats.1917, ch. 527, p. 665.) Parole for life termers was unknown until 1913. (Stats.1913, p. 1048.) In 1872 and for decades thereafter, the Governor had the power to grant pardons under the California Constitution of 1850, article V, but beyond this there was no hope for the life termer. His condition was the same as that of a person at present who has received commutation of the death penalty to life imprisonment upon condition that he never be paroled. (See In re Collie, 38 Cal.2d 396, 240 P.2d 275.)

The person serving a possible life term in recent years may serve less time in prison than does one whose maximum term is a number of years. Indeed, as was pointed out in People v. Pineda, 238 Cal.App.2d 466, 471--472, 47 Cal.Rptr. 879, one who has been convicted three times of certain felony offenses under the narcotics laws must serve a minimum of 15 years, parole being forbidden, while life termers convicted of first degree murder serve (taking the median) 150 months. (Data obtained from California Prisoners, A Summary of Felon Prisoners and Parolees (1963), published by the California Department of Corrections, p. 105.) In 1872 there was small reason to provide a tolling of the statute of limitations for a life term convict. He could not personally enjoy the fruits of litigation. He would never be outside the prison walls on parole. In the nineteenth century to have given an exemption from the statute of limitations to one who had no limitation on his confinement save that of death, would have been to bestow a sardonic favor.

The purpose of the indeterminate sentence law is 'to put before the prisoner great incentive to well-doing in order that his will to do well should be strengthened and confirmed by...