Myers v. Stevenson

• Decision Date: 21 May 1954
• Citation: 125 Cal.App.2d 399,270 P.2d 885
• Court: California Court of Appeals Court of Appeals
• Parties: MYERS v. STEVENSON et al. Civ. 15732.

Page 885

270 P.2d 885

125 Cal.App.2d 399

MYERS v. STEVENSON et al.

Civ. 15732.

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

May 21, 1954.

Rehearing Denied July 14, 1954.

Arthur C. Zief and R. A. Carmazzi, San Francisco, for appellant.

Lumb, Hoge & Killion, San Francisco, for respondent Stevenson.

Hadsell, Murman & Bishop, San Francisco, for respondent Franklin General Ben. Soc.

DOOLING, Justice.

Plaintiff appeals from a judgment in favor of defendants which was entered following an order sustaining defendants' demurrers to his second amended complaint without leave to amend.

The complaint is for personal injuries alleged to have been caused to plaintiff by the negligence of defendant Stevenson, a licensed physician, and defendant Franklin Hospital, during the labor of plaintiff's mother prior to plaintiff's birth, and during the birth of plaintiff, in defendant hospital. Plaintiff was born on or about November 1, 1945 and this action was commenced on March 18, 1952, a few months over six years after plaintiff's birth.

The question is presented whether the action is barred by the provisions of section 29 of the Civil Code. That section reads:

A child conceived, but not yet born, is to be deemed an existing person, so far as may be necessary for its interests in the event of its subsequent birth;but any action by or on behalf of a minor for personal injuries sustained prior to or in the course of his birth must be brought within six years from the date of the birth of the minor, and the time such minor is under any disability mentioned in Section 352 of the Code of Civil Procedure shall not be excluded in computing the time limited for the commencement of the action.' (Emphasis ours.)

In Scott v. McPheeters, 33 Cal.App.2d 629, 639, 92 P.2d 678, 93 P.2d 562, the court held that an action would lie under section 29 for injuries negligently inflicted upon the plaintiff before his birth. At the next session of the legislature following this decision the legilature added the language above emphasized to the section. Stats.1941, p. 1579.

To excuse the filing of the complaint more than six years after plaintiff's birth it was alleged in the second amended complaint: (1) that plaintiff 'remained under the care and control of defendant Stevenson until on or about the month of May, 1946' and (2) '(t)hat plaintiff was unaware that he had been injured during the course of his birth by the negligence and carelessness of defendants, and each of them, until the month of July, 1951 when it became necessary for the plaintiff to be again examined and treated by other physicians and surgeons, at which time his true condition, and the causes thereof, were made known to him.'

It has become settled law in California that the statute of limitations for malpractice does not ordinarily commence to run while the physician-patient relationship continues between the defendant physician and the plaintiff. The reason for this rule was stated in the land-mark case of Huysman v. Kirsch, 6 Cal.2d 302, 312, 57 P.2d 908, 913, 'During all this time she was under the exclusive care of the respondent, a reputable and skillful physician and surgeon, and both Mrs. Huysman and her husband relied solely upon him for information as to her physical condition and as to her failure to regain her health. It cannot be said, therefore, that they had any knowledge whatever of the cause of her failure to recover from the operation, or that they could have gained that knowledge by the exercise of due care and diligence prior to September 26, 1932.'

The cases uniformly since this decision have followed the rule that while the physician-patient relation continues the plaintiff is not ordinarily put on notice of the negligent conduct of the physician upon whose skill, judgment and advice he continues to rely. Trombley v. Kolts, 29 Cal.App.2d 699, 85 P.2d 541; Petrucci v. Heidenreich, 43 Cal.App.2d 561, 111 P.2d 421; Ehlen v. Burrows, 51 Cal.App.2d 141, 124 P.2d 82; Greninger v. Fischer, 81 Cal.App.2d 549, 184 P.2d 694. If this rule is applicable to the six-year limitation of section 29, Civ.Code, the allegation that defendant Stevenson continued to treat plaintiff 'until on or about * * * May, 1946', with the further allegation of lack of knowledge of the cause of plaintiff's injuries during that period would bring the action as to defendant Stevenson fairly within this rule. It would seem also to furnish reasonable grounds for the failure in the exercise of reasonable diligence to discover the negligent conduct of the defendant hospital during the same period.

It is a further settled rule in malpractice cases that the statute of limitations only starts to run from the date of discovery of, or the date when by the exercise of reasonable diligence the plaintiff should have discovered, the wrongful act. Huysman v. Kirsch, supra, 6 Cal.2d 302, 57 P.2d 908; Costa v. Regents of University of California, 116 Cal.App.2d 445, 254 P.2d 85; Agnew v. Larson, 82 Cal.App.2d 176, 185 P.2d 851; Bowman v. McPheeters, 77 Cal.App.2d 795, 176 P.2d 745; Pellett v. Sonotone Corp., 55 Cal.App.2d 158, 130 P.2d 181; Faith v. Erhart, 52 Cal.App.2d 228, 126 P.2d 151. This rule has just been reaffirmed by the supreme court in Stafford v. Shultz, 42 Cal.2d 767, 270 P.2d 1.

No particular criticism is leveled by respondents at the sufficiency of the allegations of the second amended complaint concerning the ignorance of the cause of action and its discovery, except as hereinafter noted. 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 472c, Code Civ.Proc.; Wennerholm v. Stanford University School of Medicine, 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.

It is suggested that an infant of six years or under could not in the nature of things know of his injury or the cause thereof and that the allegation of the plaintiff's lack of knowledge and discovery cannot therefore extend the period of a statute which expressly requires the bringing of the action within six years after the plaintiff's birth. We think it is obvious that the statute casts the burden of bringing suit on the parents of the child as his natural guardians, or on his guardian if he has one. See Artukovich v. Astendorf, 21 Cal.2d 329, 335, 131 P.2d 831. The allegations of lack of knowledge and discovery to toll the statute should therefore refer to the lack of knowledge of, and discovery by, the parents, but this is a matter in which the complaint can be readily cured by an appropriate amendment. Section 472c, Code Civ.Proc. and cases cited supra.

The real weight of respondents' position rests on the rule that where a statute creates a right unknown to the common law and in the same statute fixes a time limit within which an action must be brought, ordinarily the limitation so fixed is construed as a condition on the right itself so that the right is extinguished by the lapse of the time fixed in the statute. Both respondents cite and quote from 34 Am.Jur., Limitation of Actions, sec. 7, pp. 16-17, which may be accepted as a fair statement of the rule and its limitations:

'A statute of limitations should be differentiated from conditions which are annexed to a right of action created by statute. A statute which in itself creates a new liability, gives an action to enforce it unknown to the common law, and fixes the time within which that action may be commenced, is not a statute of limitations. It is a statute of creation, and the commencement of the action within the time it fixes in an indispensable condition of the liability and of the action which it permits. The time element is an inherent element of the right so created, and the limitation of the remedy is a limitation of the right. Such a provision will control, no matter in what form the action is brought. The statute is an offer of an action on condition that it be commenced within the specified time. If the offer is not accepted in the only way in which it can be accepted, by a commencement of the action within the specified time, the action and the right of action no longer exist, and the defendant is exempt from liability. Whether an enactment is of this nature, or whether it is a statute of limitations, should be determined from a proper construction of its terms. Generally, the limitation clause is found in the same statute, if not in the same section, as the one creating the new liability, but the fact that this is the case is material only as bearing on questions of construction; it is merely a ground for saying that the limitation goes to the right created, and accompanies the obligation everywhere. The same conclusion may be reached if the limitation is in a different statute, provided it is directed to the newly created liability so specifically as to warrant saying that it qualifies the right.'

With few exceptions the courts of this country, when they have held such a time limit to be a condition on the right itself and not a mere statute of limitations affecting the remedy only, have held that no circumstances, whatever the hardship of the particular case, could operate to extend the period within which such an action could be brought. See the cases collected in Bookshire v. Burkhart, 141 Okl. 1, 283 P. 571, 67 A.L.R. 1070. Latterly a tendency to relax this harsh rule at least in certain cases has become apparent. Our own supreme court in Estate of Caravas, 40 Cal.2d 33, 250 P.2d 593, held that the fact that an alien was denied access to our courts by the existence of a state of war extended the time within which he could sue to recover the property of...