Sonbergh v. MacQuarrie
| Decision Date | 19 August 1952 |
| Citation | 112 Cal.App.2d 771,247 P.2d 133 |
| Court | California Court of Appeals Court of Appeals |
| Parties | SONBERGH v. MacQUARRIE. Civ. 18965. |
Lawrence William Steinberg, Beverly Hills, for appellant.
Jerome J. Mayo, Los Angeles, for respondent.
By his complaint of August 9, 1951, plaintiff sought recovery of damages for severe personal injuries which he alleged he sustained as result of an assault and bettery made upon him on September 25, 1948, by defendant.
The latter interposed a general demurrer and moved for a judgment on the pleadings, on the ground that the action was barred by the statute of limitations, i. e., section 340(3) Code of Civil Procedure.
The demurrer was ordered off calendar and the motion was granted. From the judgment which followed, plaintiff appeals.
The complaint alleges that plaintiff was struck by defendant on September 28, 1948; that such striking was without cause or provocation. That plaintiff was unaware at the time of the assault that any substantial injuries had resulted; that he took all reasonable precautions to ascertain if he had been injured, including visits to physicians and X-rays and other tests recommended by them. It is also alleged that plaintiff could not have learned of the extent of his injuries prior to April, 1951, when it first became possible to make a diagnosis that plaintiff had 'organic brain and nervous injuries' proximately caused by the assault.
It is further alleged that, as a result of such injuries, plaintiff has suffered dizziness, general malaise, numbness and tremors. His sense of balance is adversely affected, his freedom of motion is curtailed and he has to walk with a cane. He has suffered loss of speech, loss of muscular control, and has sustained injuries to his brain, nerves and tissues of his head, to his central nervous system as well as to other parts of his body. He suffers great pain; is unable to work; requires and will continue to require medical care.
The question involved herein is stated by respondent as follows: 'In a battery case where the injuries flowing from the battery were immediately not substantial, but later became so, are the provisions of section 340, subdivision 3, Code of Civil Procedure * * * tolled until the seriousness of the injuries is discovered.' (Emphasis included.)
The statute, above referred to, requires that an action for assault, battery, or for injury to or for the death of one caused by the wrongful act or neglect of another shall be commenced within one year. Here the complaint was not filed until two years and ten months after the alleged assault.
Appellant urges that since, in the exercise of due diligence, he was not able to determine the cause or source of his ill health until a few months before he filed his complaint, his action was filed in time. In support of this position, he cites those causes of action in which the statutes of limitations run from time of discovery of the injury, to-wit: warranty, malpractice and workmen's compensation cases. This exception to the general rule rests upon the theory that ignorance or concealment which is the result of defendant's conduct rather than the negligence of plaintiff, tolls the running of the statute until discovery of the injury. 34 Am.Jur. 186, sec. 230, Limitation of Actions.
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