Hurlimann v. Bank of America Nat. Trust & Sav. Ass'n

• Citation: 141 Cal.App.2d 801,297 P.2d 682
• Decision Date: 24 May 1956
• Docket Number: No. 16593,16593
• Court: California Court of Appeals
• Parties: Helen HURLIMANN and Armin Hurlimann, Plaintiffs and Appellants, v. BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Executor of the Last Will and Testament of Modesto A. Giordano, Deceased, et al., Defendants and Respondents.

Page 682

297 P.2d 682

141 Cal.App.2d 801

Helen HURLIMANN and Armin Hurlimann, Plaintiffs and Appellants, v. BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Executor of the Last Will and Testament of Modesto A. Giordano, Deceased, et al., Defendants and Respondents.

No. 16593.

District Court of Appeal, First District, Division 1, California.

May 24, 1956.

Hearing Denied July 18, 1956.

Paul Friedman, San Francisco, for appellants.

John Francis Digardi, San Francisco, Peart, Baraty & Hassard, Robert D. Huber, San Francisco, for respondents.

FRED B. WOOD, Justice.

This is an action against the executor of the will of Dr. Modesto A. Giordano, brought by Helen Hurlimann and her husband Armin Hurlimann for damages allegedly caused by negligent medical treatment of Helen in 1951, the true nature of which, the complaint avers, was not discovered by plaintiffs until she underwent an operation performed by other physicians on the 23rd day of March, 1954.

Meanwhile, Dr. Giordano died on the 18th of August, 1953. His will was probated and an executor appointed. The first notice to creditors was published on September 22, 1953.

Plaintiffs filed their respective claims against the estate on the 6th of May, 1954, several weeks after the expiration of the six months' period prescribed by section 707 of the Probate Code.

Defendant demurred upon the asserted grounds that the complaint did not state a cause of action and that the alleged cause was barred by the provisions of section 707 of the Probate Code and subdivision 3 of section 340 of the Code of Civil Procedure. The demurrer was sustained without leave to amend. Judgment was rendered thereon and the plaintiffs have appealed.

The applicable statute of limitations prescribes one year as the period within which 'an action * * * for injury to * * * one [person] caused by the wrongful act or neglect of another' may be brought. Code Civ.Proc., § 340, subd. 3. In malpractice cases this one year period does not start to run until the date of discovery of the wrongful act or the date when by the exercise of reasonable diligence the plaintiff should have discovered it. Stafford v. Schultz, 42 Cal.2d 767, 776-778, 270 P.2d 1; Costa v. Regents of University of California, 116 Cal.App.2d 445, 454-455, 254 P.2d 85; Bowers v. Olch, 120 Cal.App.2d 108, 117, 260 P.2d 997; Myers v. Stevenson, 125 Cal.App.2d 399, 270 P.2d 885; Hemingway v. Waxler, 128 Cal.App.2d 68, 274 P.2d 699; Wohlgemuth v. Meyer, 139 Cal.App.2d 326, 293 P.2d 816. In such a case the complaint must state when the discovery was made, the circumstances under which it was made, and facts to show that the plaintiff is not at fault for not having made an darlier discovery, and that he had no actual or presumptive knowledge of facts sufficient to put him on inquiry. Myers v. Stevenson, supra, 125 Cal.App.2d 399, 270 P.2d 885; Wohlgemuth v. Meyer, supra, 139 Cal.App.2d 326, 293 P.2d 816.

In the instant case plaintiffs alleged the date of discovery (March 23, 1954) and the circumstances under which the discovery was made (operation performed by other physicians). Concerning lack of actual or presumptive knowledge, they allege that certain thyroid treatments negligently administered by Dr. Giordano in 1951 resulted in a disfiguring scar on Mrs. Hurlimann's throat and large amounts of tissue which she later discovered had to be removed, but that plaintiffs continued at various times during the years 1951, 1952 and 1953 to consult with the doctor 'in reference to general checkup, and although advised by said decedent on those visits that plaintiff Helen Hurlimann had a tonsil condition that would require a tonsillectomy, were never advised that there was any danger connected with the white scar left by the radium exposure, and were lulled into a false sense of security by said decedent's representations to them that the scar on the throat of plaintiff Helen Hurlimann was insignificant and harmless and that its removal would be a routine and simple matter to be done when a tonsillectomy would be performed on said plaintiff. Said plaintiff[s] relied on these representations, believing the scar to be superficial and harmless, until an operation which was performed upon plaintiff Helen Hurlimann, on the 23rd day of March, 1954, by other physicians.'

This is meager statement of the circumstances under which the discovery was made and of the asserted lack of earlier actual or presumptive notice. In such a case as this the plaintiff must narrate the circumstances concerning his delayed discovery in such detail 'that the court may determine whether the discovery * * * was within the time alleged * * *.' Lady Washington C. Co. v. Wood, 113 Cal. 482, 487, 45 P. 809, 810, cited with approval in Original Min. & Mill. Co. v. Casad, 210 Cal. 71, 74-75, 290 P. 456. However, as stated in Myers v. Stevenson, supra, 125 Cal.App.2d 399, 402, 270 P.2d 885, 887, likewise in our case, 'If the allegations might be more explicit as to the reason for not discovering the cause of action sooner, it does not appear that they could not be amended to meet any such objection and this being so the sustaining of the demurrer without leave to amend would be reversible error, if it appears that a cause of action could be stated. Section 472, c. 5, Code Civ.Proc.; Wennerholm v. Stanford University School of Med., 20 Cal.2d 713, 128 P.2d 522, 141 A.L.R. 1358; Speegle v. Board of Fire Underwriters, 29 Cal.2d 34, 172 P.2d 867.'

This presents for consideration the question whether certain provisions of section 707 of the Probate Code ^* operate as a bar to this action even if the statute of limitations has not commenced to run. Section 707 declares that 'all claims for damages for physical injuries * * * must be filed or presented within the time limited in the notice or as extended by the provisions of Section 702 of this code; and any claim not so filed or presented is barred forever, unless it is made to appear * * * that the claimant had not received notice, by reason of being out of the State * * *.' (There is no allegation that either of the plaintiffs herein was at any time out of the state.)

If literally construed, this 'all claims' provision of section 707 would include the cause of action of an injured person who has not yet discovered the wrong. It is argued that such an interpretation is so inconsistent with the policy of not having the statute of limitations run until discovery, the Legislature could not have intended thus to terminate the right of action before discovery. It has further been suggested that a literal construction and application of this 'all claims' provision would be equally inconsistent with the main purpose of the very act which amended section 707, States.1949, ch. 1380, pp. 2400, 2402, the survival of tort actions, including personal injury actions.

Such a purpose is expressed in the title of the 1949 act and in section 956 which it added to the Civil Code, the latter declaring that a 'thing in action arising out of a wrong which results in physical injury to the person or out of a statute imposing liability for such injury shall not abate by reason of the death of the wrongdoer or any other person liable for damages for such injury, nor by reason of the death of the person injured or of any other person who owns any such thing in action. * * *' Stats.1949, ch. 1380, p. 2400.

If this were the only legislative purpose and policy involved, we would be confronted with the problem of reconciling section 707 with section 956, for section 707 does seem to undo (in the type of case here under consideration) what...