Warrington v. Charles Pfizer & Co.

Decision Date02 July 1969
Citation274 Cal.App.2d 564,80 Cal.Rptr. 130
CourtCalifornia Court of Appeals Court of Appeals
PartiesBarbara L. WARRINGTON, Paintiff and Appellant, v. CHARLES PFIZER AND CO., Inc., a corporation, complaint raised certain ambiguities Civ. 33302.

Oliver & Sloan, Richard L. Oliver, Los Angeles, and George S. Alfieris, Sherman Oaks, Edward L. Lascher, Ventura, for appellant.

Brill, Hunt, DeBuys & Burby, Robert E. McGurl and Abe Mutchnik, Los Angeles, for respondent.

ROTH, Presiding Justice.

This is an appeal from a judgment of dismissal predicated upon an order sustaining Charles Pfizer & Co., Inc.'s (respondent) general demurrer to the third amended complaint of Barbara L. Warrington (appellant), without leave to amend.

Respondent demurred to the third amended complaint (complaint), as it did to each of the three prior pleadings (except the second amended complaint) 1 on the sole ground that the causes of action alleged therein arising from personal injuries (ailments) suffered by ingestion of a drug 'diabenese' manufactured and distributed by respondent, are barred by the one-year statute of limitation. (Code of Civ.Proc. § 340, subd. 3.)

The sole question presented is when the causes of action against respondent accrued. Respondent contends they accrued at the time the tort was inflicted, to wit: the time appellant ingested the drug that caused and resulted in physical ailments of which she complains. Appellant concedes the application of section 340, subd. 3, C.C.P., but contends that the time she discovered or in the exercise of reasonable care should have discovered that she had been tortiously injured by respondent's product.

We agree with appellant.

In the recent case of Howe v. Pioneer Mfg. Co., 262 Cal.App.2d 330, 68 Cal.Rptr. 617, plaintiffs, as tenants, took possession on December 7, 1960 and "thereafter on many diverse occasions and until * * * the 21st day of January, 1964 the plaintiffs * * * would from time to time become violently ill and nauseated, and on some occasions become unconscious and hospitalized'; that these injuries were caused by a gas furnace, negligently manufactured, installed and inspected and tested by defendants; that this furnace was dangerous and defective; and that plaintiffs' illness 'was unexplained and undetermined until * * * the 21st day of January 1964 when it was discovered * * * that as a direct and proximate result of said dangerous and defective furnace, gas had been permeating the said premises and poisoning the said plaintiffs." (Howe, pp. 334--335, 68 Cal.Rptr. p. 620.)

Howe, at page 339, 68 Cal.Rptr., at page 622 makes it clear '* * * that the one-year limitation of subdivision 3 of section 340 of the Code of Civil Procedure is applicable to the claims for damages for personal injuries whether predicated on negligence or breach of an express or an implied warranty.'

The court in Howe said at page 340, 68 Cal.Rptr. at page 623:

'Generally, the right to bring and prosecute an action arises immediately upon the commission of the wrong claimed, and the statute of limitations runs from that time; thus, a cause of action in tort arises when the wrongful act is committed, not at the time of the discovery of the act.' * * *

"It is the general rule that the applicable statute of limitations begins to run even though the plaintiff is ignorant of his cause of action or of the identity of the wrongdoer. (1 Witkin, Cal. Procedure (1954) Actions, § 112, p. 615; Rubino v. Utah Canning Co. (1954) 123 Cal.App.2d 18, 27, 266 P.2d 163 (citation))' (Calabrese v. County of Monterey (1967) 251 Cal.App.2d 131, 141, 59 Cal.Rptr. 224 (citation). * * *.

'* * *.ng

'* * * Furthermore, when the fact of injury and the identity of the party responsible for it are known, the failure to discover some or most of the resulting damage until later will not toll the running of the statute. (Strzelczyk v. Marki, Supra, 169 Cal.App.2d 703, 705, 337 P.2d 846; Sonbergh v. MacQuarrie, Supra, 112 Cal.App.2d 771, 773--774, 247 P.2d 133; and see Collins v. County of Los Angeles, Supra, 241 Cal.App.2d 451, 457--458, 50 Cal.Rptr. 586.)'

However, analysis of some of the cases show that if the unawareness of the injury is induced by fraud, or there is some valid excuse for the ignorance, (Sonbergh supra); or there is a lack of actual and perceptible trauma (thus in Rubino, cited for the strict rule--the fact that plaintiff ate canned peas and became violently ill almost immediately thereafter,--immediate illness after food poisoning is preceptible trauma)--or in the case of insidious and creeping disease (Anderson v. Southern Pac. Co., 231 Cal.App.2d 233, 240, 41 Cal.Rptr. 743), the strict rule will not be applied. There is, too, a line of cases holding that when no perceptible trauma is involved and there is a silent and insidious onset of the injury or its effects, the cause accrues only when there is knowledge or means of knowledge which should alert the injured. (Ricciuti v. Voltarc Tubes, Inc., 277 F.2d 809, 812; cf. Brush Beryllium Company v. Meckley, 284 F.2d 797, 798; Young v. Clinchfield Railroad Company, 288 F.2d 499, 502--503.)

In addition, there appears to be a definite trend toward the discovery rule and away from the strict rule in respect of the time for the accrual of the cause of action for personal injuries. 2

In California, in compensation cases (Marsh v. Industrial Accident Commission, 217 Cal. 338, 351, 18 P.2d 933, 86 A.L.R. 563), and in the Federal courts in the cases of insidious and creeping disease (Urie v. Thompson, 337 U.S. 163, 170, 69 S.Ct. 1018, 93 L.Ed. 1282); R. J. Reyonlds etc. v. Hudson, Supra, 314 F.2d 776) the strict rule which starts the running of statute does not apply. Accrual date of the cause of action is postponed in cases involving medical (Alter v. Michael, 64 Cal.2d 480, 483, 50 Cal.Rptr. 553, 413 P.2d 153; Stafford v. Shultz, 42 Cal.2d 767, 775, 270 P.2d 1; Huysman v. Kirsch, 6 Cal.2d 302, 311--313, 57 P.2d 908) insurance broker (Walker v. Pac. Indemnity Co., 183 Cal.App.2d 513, 516--519, 6 Cal.Rptr. 924) and stock broker (Twomey v. Mitchum Jones & Templeton, Inc., 262 Cal.App.2d 690, 723--729, 69 Cal.Rptr. 222) legal (Lucas v. Hamm, 56 Cal.2d 583, 15 Cal.Rptr. 821, 364 P.2d 685) and certified accountant (Moonie v. Lynch, 256 Cal.App.2d 361, 64 Cal.Rptr. 55) malpractice and misfeasance cases. The strict rule excerpted from Howe is, in various cases, relaxed for a variety of reasons, such as implicit or express representation; fraudulent concealment, fiduciary relationship, continuing tort, continuing duty, and progressive and accumulated injury, all of them excusing plaintiff's unawareness of what caused his injuries and all applying the rule of discovery.

In reversing the summary judgment, the Howe court said at page 346, 68 Cal.Rptr. at page 627:

'In the instant case the wrongful conduct is alleged to consist of the failure to furnish a heating system which did not permit the escape of gas. The initial act or omission presumably occurred prior to the commencement of the plaintiffs' tenancy. There is, however, a continuing duty on the landlord to furnish the tenant a safe place to reside.'

It appears therefore that despite the elaborate analysis of case law in Howe, its judgment rested upon the continuing duty of the manufacturer arising from an express or implicit warranty, to wit: that it would install a heating system which would not permit the escape of gas. Since in Howe, the duty breached was a continuing one, the tort complained of was well within the accrual time. 3

In the recent case of Heyer v. Flaig, 70 A.C. 232, 74 Cal.Rptr. 225, 449 P.2d 161, January 22, 1969, the court held that the statute of limitations (two years) within which an action predicated upon negligence must be brought against a lawyer, does not commence to run in favor of the lawyer and against an intended beneficiary of a will, but that in such case the limitation period '* * * starts from the date that the cause of action accrues: namely the incidents of the testatrix' death when the negligent failure * * * becomes irremedial and the impact of the injury occurs.' (Page 234, 73 Cal.Rptr. page 226, 449 P.2d page 162).

In Heyer, the court at page 242, 74 Cal.Rptr. 225, 449 P.2d 161 in note 7, takes pains to show how the reasoning for the relaxation and extention of the strict rule as it had originally applied to malpractice, also applies to the facts in Heyer.

In Frohs v. Greene et al., 452 P.2d 564 (April 2, 1969) the Oregon Supreme Court refused to be bound by recognized exceptions to the rule as applied to medical malpractice and says in effect that fairness and common sense impel the application of the rule of discovery. In Frohs, plaintiff alleged penicillin injections in the 1951 from which she suffered various illnesses which she did not discover although she was continuously diligent until 1965. After discovery of the reason for her physical difficulties in 1965, she brought an action within the statutory period after date of discovery.

The Oregon Supreme Court referred to an earlier case which refused to apply the discovery rule and said at page 565:

'* * * (I)t is impossible to justify the applicability of the discovery rule to one kind of malpractice and not to another. * * * It is manifestly unrealistic and unfair to bar a negligently injured party's cause of action before he has had an opportunity to discover that it exists. * * *.

'We do not believe that the danger of spurious claims is so great as to necessitate the infliction of injustice on persons having legitimate claims which were undiscoverable by the exercise of ordinary care prior to the lapse of two years from the time of the act inflicting the injury. Nor do we believe the legislature intended such a result. We therefore overrule our former decision * * *.'

Analysis of the cited cases indicates to us that when personal...

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