Wohlgemuth v. Meyer, 16379

• Decision Date: 20 February 1956
• Docket Number: No. 16379,16379
• Court: California Court of Appeals Court of Appeals
• Parties: Max WOHLGEMUTH, Plaintiff and Appellant, v. Paul MEYER, M. D., Mortimer, Weiss, M. D., Felix Feraru, M. D., Sutter Medical Service Company, a corporation, doing business under the fictitious name and style of Doctor's Hospital, et al., Defendants and Respondents.

Page 816

293 P.2d 816

139 Cal.App.2d 326

Max WOHLGEMUTH, Plaintiff and Appellant, v. Paul MEYER, M. D., Mortimer, Weiss, M. D., Felix Feraru, M. D., Sutter Medical Service Company, a corporation, doing business under the fictitious name and style of Doctor's Hospital, et al., Defendants and Respondents.

No. 16379.

District Court of Appeal, First District, Division 1, California.

Feb. 20, 1956.

Shirley, Saroyan, Calvert & Peterson, by Sanford N. Diller, San Francisco, for appellant.

Peart, Baraty & Hassard, by Robert D. Huber, San Francisco, for respondents.

BRAY, Justice.

Plaintiff appeals from a judgment entered upon an order sustaining demurrer without leave to amend.

Questions Presented.

1. Does the statute of limitations (Code Civ.Proc. § 340 subd. (3) applicable to the wrongful death statute (Code Civ.Proc. § 377) act as a bar to the right or only to the remedy?

2. If the limitation is merely procedural, were sufficient facts pleaded to toll the statute?

Record.

The amended complaint charged all defendants with malpractice in negligently causing the death of plaintiff's wife. She died July 4, 1952. The action was filed more than one year later, December 4, 1953. ¹ Defendants demurred on the ground that the amended complaint did not state sufficient facts to constitute a cause of action 'in that it is barred by the statute of limitations.'

1. Bar to Right or Remedy?

Generally 'wrongful death statutes' have been construed as either creating a cause of action new to the common law, or permitting an action to survive which abated at common law. A provision therein limiting the time within which the action may be brought has been held to be technically not a statute of limitations, but a condition of the right to maintain the action which condition must be strictly complied with. There are many jurisdictions following the same rule even where the limitation is in a separate statute. See Brookshire v. Burkhart, 141 Okl. 1, 283 P. 571, 67 A.L.R. 1070; Smith v. Eureka Pipe Line Co., 1941, 122 W.Va. 277, 8 S.E.2d 890, 132 A.L.R. 292.

The precise question has not been determined by the California courts although in analogous cases as will hereafter be shown our courts have declined to follow the majority rule. As early as 1907, a federal circuit court in Gregory v. Southern Pac. Co., C.C., 157 F. 113, traced the history of our wrongful death statute and the limitation of actions applicable to it and held that it was the intention of the California Legislature to make the limitation procedural only. It pointed out that the first statute on the subject was adopted in 1862, an act "requiring compensation for causing death by wrongful act, neglect, or default." Stats.1862, p. 447. 'The action given by the California statute is in effect the same as that accorded by Lord Campbell's act. It is a new action--that is, one that had not previously obtained under the common law--and not a continuation or revival of an old action, or one that subsisted prior to the death. It is founded upon the injury causing death as it affects the heirs and personal representatives, and not as it affects the decedent individually.' Id., 157 F. at page 115. The statute limited actions to two years after death. In 1872 as a result of the work of the previously appointed Code Commission, a Code of Civil Procedure was adopted. Section 377 of this code codified the right to bring an action for wrongful death. It, however, did not include any limitation of time. The limitation for commencing an action for wrongful death was placed in section 339. In 1905 the period was reduced to one year and placed in section 340, Stats.1905, p. 232, and included in the limitations were other actions such as libel, slander and the like. After considering a number of cases enforcing the general rule which placed importance upon the limitation being in the death statute itself, the court held that up to the time that the limitation was placed in the general statute of limitations, such limitation 'constituted a condition attending the bringing of the action, and was designed as a part and parcel of the liability created, and could not have been considered apart from the act giving the right of action as a limitation statute simply.' 157 F. at pages 118-119. The court then discussed the effect of completely segregating the limitation from the statute giving the right of action, and held, 157 F. at page 119: 'Furthermore, the limitation was formerly from the time of the death of the party injured, while now it begins to run from the time the cause of action accrued; showing that, by a rearrangement of the statutes, and their adoption in that form, a different purpose was to be subserved, and we must ascribe to such statutes, therefore, another and different intendment. That intendment, manifestly, is to place the right of action accorded by section 377 in the category of other causes, and to apply the statute of limitations to that action in manner and substance as applied to all other civil actions, treating it as a part of the remedy only, and not as a condition to the cause.'

That the California courts do not favor the general rule concerning limitations in statutes granting rights not existing at common law, is shown in Myers v. Stevenson, 125 Cal.App.2d 399, 270 P.2d 885. There, the court was asked to hold that section 29, Civil Code, providing a 6-year limitation in actions brought by a minor for personal injuries sustained prior to birth, which limitation is in the same section which gives the right of action, came within the general rule above mentioned and to hold that the limitation barred the right of action rather than the remedy. The court declined so to do and held to the contrary. It pointed out that 'Latterly a tendency to relax this harsh rule at least in certain cases has become apparent', 125 Cal.App.2d at page 404, 270 P.2d at page 888, and that in In re Estate of Caravas, 40 Cal.2d 33, 250 P.2d 593, our Supreme Court held that the limitation in section 1026, Probate Code, of 5 years within which an alien might appear and demand property to which he was entitled, was not a substantive statute of limitation but merely a procedural one. Referring to certain cases from outside the state the court said, 125 Cal.App.2d at page 405, 270 P.2d at page 889: 'These cases show a judicial trend, joined in by our own supreme court in the Caravas case, to ameliorate the harshness of the rule that under no circumstances can the time limited for bringing suit be extended where the time limitation is construed as a condition of the remedy created. They indicate a tendency to hold that where actual or practical access to the courts is prevented the distinction between so-called substantive and procedural statutes of limitations may be disregarded.'

It is significant that in the Caravas case, supra, 40 Cal.2d at page 41, 250 P.2d at page 597, the court approved the decision in State of Maryland to Use of Burkhardt v. United States, 4 Cir., 165 F.2d 869, which refused to follow the general rule above mentioned and quoted the language of the latter court in holding such rule "* * * to say the best of it, technical and legalistic reasoning, which is not followed in all the states."

Persuasive on this question is the determination the courts of this state have made that limitations on other rights of action are procedural and not substantive. Farrell v. County of Placer, 23 Cal.2d 624, 145 P.2d 570, 153 A.L.R. 323, ninety-day limitation on filing a claim against a governmental body for injury resulting from the dangerous or defective condition of public property. To the same effect, Schulstad v. City and County of San Francisco, 74 Cal.App.2d 105, 168 P.2d 68; Rounds v. Brown, 121 Cal.App.2d 642, 263 P.2d 620.

Thus it is clear that California does not follow the restrictive general rule but the more reasonable and logical one that the limitations on actions for wrongful death are procedural and not substantive.

2. Sufficiency of Pleading.

On the issue of tolling the statute the amended complaint alleges the relationship of doctor and patient between plaintiff's wife and the defendants other than the hospital, and the relationship of hospital and patient between her and the hospital defendant; that at all times from...