Smith v. Berkey

• Decision Date: 08 May 1925
• Docket Number: 18981.
• Citation: Smith v. Berkey, 134 Wash. 348, 235 P. 793 (Wash. 1925)
• Court: Washington Supreme Court
• Parties: SMITH v. BERKEY.

235 P. 793

134 Wash. 348

SMITH v. BERKEY.

No. 18981.

Supreme Court of Washington

May 8, 1925

Department 2.

Appeal from Superior Court, Spokane County; Blake, Judge.

Action by William S. Smith against H. M. Berkey. From an order of dismissal, plaintiff appeals. Affirmed.

F. W Girand, of Spokane, for appellant.

Berkey & Cowan, of Spokane, for respondent.

TOLMAN C.J.

Appellant as plaintiff brought this action to recover damages accruing from alleged neglect and carelessness on the part of respondent, as defendant, in his conduct of an action which he had been employed to prosecute as an attorney on behalf of the plaintiff. A demurrer to the complaint was sustained by the trial court on the ground that the action was barred by the statute of limitations. Plaintiff elected to stand on his complaint, and, from an order dismissing the action, he has appealed.

The complaint, in substance, alleges that respondent is a duly licensed and practicing attorney at law that he was employed as such by appellant to prosecute an action against one Montelius and his wife; that he caused summons and complaint to be served on the defendants in that action, but neglected to file the original summons and complaint in the office of the clerk of the court where the action was pending until August 6, 1920; that by reason of the failure to file the summons and complaint in time the action was barred by the statute of limitations, and thereafter a judgment was rendered in favor of the defendants in that action, solely on the ground that the action was not commenced within the time limited by law.

The appellant seems to contend that his right of action against respondent did not accrue until the entry of the judgment denying him recovery in the former action, because, perhaps his loss was not apparent until that time. Such is not the law. This is an action based upon a breach of duty.

'But, like any other action founded upon a breach of duty imposed either by law or contract, the action arises out of the breach, and the statute of limitations begins to run from the time of the breach, and not from the time of its discovery. No action lies for speaking an untruth, unless by virtue of the relation between the parties the law imposes the duty of speaking the truth. No action lies for concealment, unless the law imposes the duty of disclosure. In this case, the duty is one growing out of the relation between the parties

...