Judson Pacific-Murphy, Inc. v. Thew Shovel Co., PACIFIC-MURPH

• Citation: 275 P.2d 841,127 Cal.App.2d Supp. 828
• Decision Date: 16 July 1954
• Docket Number: I,PACIFIC-MURPH,No. 2315,2315
• Court: California Superior Court
• Parties: 127 Cal.App.2d Supp. 828 JUDSONnc., a corporation, Plaintiff and Appellant, v. THEW SHOVEL COMPANY, a corporation, et al., Defendants and Respondents. Appellate Department, Superior Court, San Francisco County, California

Page 841

275 P.2d 841

127 Cal.App.2d Supp. 828

JUDSON PACIFIC-MURPHY, Inc., a corporation, Plaintiff and Appellant, v. THEW SHOVEL COMPANY, a corporation, et al., Defendants and Respondents.

No. 2315.

Appellate Department, Superior Court, San Francisco County, California.

July 16, 1954.

Thornton & Taylor, San Francisco, for appellant.

Dinkelspiel & Dinkelspiel, San Francisco, for respondents.

DEVINE, Presiding Judge.

We have before us the question of the propriety of a judgment founded on an order sustaining a demurrer without leave to amend, the demurrer being based on the statute of limitations and on failure to state a cause of action.

Plaintiff was the purchaser of a crane which was engaged in the entirely laudable work of raising steel for the building of Hastings College of Law. The crane proved unequal to the task, and broke. The action is for damage to the crane itself, not to any other person or other property.

The complaint is in two counts: the first professedly on breach of warranty, which has been abandoned. (Plaintiff did not purchase the crane from defendant, the manufacturer, but from a distributor.)

The second count, it is stated by plaintiff, is upon negligence, on the theory that the manufacturer is liable for having manufactured negligently a 'dangerous' article, the crane, and is liable under the doctrine of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696 which doctrine has been recognized in California. Kalash v. Los Angeles Ladder Co., 1 Cal.2d 229, 34 P.2d 481; Sheward v. Virtue, 20 Cal.2d 410, 126 P.2d 345; see, Restatement of Torts, Secs. 394 et seq.

Plaintiff purchased the crane July 1, 1949, and the crane broke on July 23, 1951. An action for breach of warranty against any party liable therefor would have been barred by the statute of limitations. § 339, Code Civ.Proc., sub-div. 1.

Plaintiff contends that it has a cause of action for negligence, as stated above, and that such cause did not accrue until the damage occurred on July 23, 1951, and that the action having been commenced May 1, 1953, it is within the statutory time for an action for damages to personal property. § 339, C.C.P. sub-div. 1.

Defendant argues that 1) The cause of action accrued at the time of the alleged negligent manufacture, the date of which is not alleged, except that it was prior to July 1, 1951, and 2) That in any event the 'dangerous article' doctrine does not apply where the damages are only to the article itself.

As to the first of these arguments, it is not necessary, we think, to decide. It is the law, generally (medical malpractice and fraud cases excepted), that when a complete tort has been committed, and, therefore, some damage has been done, the statute starts to run, whether or not the plaintiff is aware of his damage, Lattin v. Gillette, 95 Cal. 317, 30 P. 545; Medley v. Hill, 104 Cal.App. 309, 285 P. 891; Lambert v. McKenzie, 135 Cal. 100, 67 P. 6; Wetzel v. Pius, 78 Cal.App. 104, 107, 248 P. 288; Lightner Mining Co. v. Lane, 161 Cal. 689, 696, 120 P. 771, and even though the original damage has been slight, and much more serious results occur. Sonbergh v. MacQuarrie, 112 Cal.App.2d 771, 247 P.2d 133...