Opinion
7-21-1953
STAFFORD v. SHULTZ et al. * Civ. 19539.
Fulcher & Wynn, Los Angeles, by Chas. E. R. Fulcher, Los Angeles, for respondents Ellwood L. Shultz and Woodrow Meier. Highsmith & Allen, by John C. Allen, Los Angeles, for respondents John D. Gillis, Elizabeth Kelpien and William Kelpien. Bauder, Gilbert, Thompson & Kelly, Los Angeles, for respondent Arthur Ferree.
STAFFORD
v.
SHULTZ et al.
July 21, 1953.
Rehearing Denied Aug. 21, 1953.
Hearing Granted Sept. 17, 1953.
Elsan H. Stafford, in pro. per.
Fulcher & Wynn, Los Angeles, by Chas. E. R. Fulcher, Los Angeles, for respondents Ellwood L. Shultz and Woodrow Meier.
Highsmith & Allen, by John C. Allen, Los Angeles, for respondents John D. Gillis, Elizabeth Kelpien and William Kelpien.
Bauder, Gilbert, Thompson & Kelly, Los Angeles, for respondent Arthur Ferree.
MOORE, Presiding Justice.
General demurrers having been sustained to the fifth amended complaint, judgments of dismissal were entered from which comes this appeal.
The substance of the voluminous complaint is that appellant accidentally shot a bullet into his left leg, eight inches above the knee, February 25, 1949, and on the same day came under the care of respondents Shultz, Meier and Ferree and was confined to an emergency hospital until March 6. During his nine days' treatment at such hospital, the last named respondents discovered that the bullet had damaged the popliteal artery and severed the sciatic nerve. They removed the bullet and the damaged portions of the artery but made no effort to repair the injured artery or the nerve. They did give him blood transfusions, sedatives and injections of penicillin and kept the wounded member in dressings and in ice packs. But it remained 'considerably extended by reason of neglect of said defendants to remove said accumulated blood.'
On March 6 he was transferred to the Beverly Hospital in Montebello where respondents Kelpien assumed and continued the care and treatment of him until March 29. They did not know of the infection in the wound and neglected to take additional X-ray pictures. On the last named date appellant was removed to the Good Samaritan Hospital and respondent Gillis took charge and treated the injured limb until April 12 when appellant was discharged. While he was at the Good Samaritan, Dr. Gillis made incisions in the calf of the left leg and removed 500 cubic centimenters of old blood clots and pus, but neglected to take any X-ray pictures or to repair the damaged popliteal artery or sciatic nerve. On leaving the Good Samaritan he again went under the care of Shultz, Meier and Ferree until September 2, 1949. During that four and two thirds months, those doctors took only one X-ray of the wound, on May 5, but they administered sedatives and penicillin while pus continued to drain, and appellant ran a temperature, had chills and was delirious.
On September 2, 1949, Dr. Gillis advised appellant that his leg would never be of any benefit; his health was endangered and the leg should be amputated. Appellant having consented, the left leg was removed on September 22 by Dr. Gillis, but 'with the application of the proper knowledge and skill said left leg could still [have] been saved and have been of use and benefit.' Defendants led plaintiff, during all such time and treatment, to believe that the left leg would be cured. But not until August 2, 1950, did plaintiff learn material facts from other parties which caused him to make an investigation.
On that day the State Compensation Insurance Fund served on plaintiff copies of reports made by defendants Shultz, Meier, Ferree and Gillis. It was learned therefrom that the bullet had damaged the popliteal artery; that ostitis, periostitis and osteomyelitis had already infected the bones on May 5, 1949; that on September 16, 1949, infection had spread throughout the tibia and fibula, and the lower half of the femur.
By his second count appellant pleads the same facts with the additional charge and allegations that respondents fraudulently concealed their knowledge of his true condition at all times and prevented his prompt action to institute an action for damages. But from any view taken, as will subsequently appear, the action is barred by the provisions of SECTION 340(3) , CODE OF CIVIL PROCEDURE.
The first count is clearly barred. Respondents Shultz, Meier and Ferree served the first nine days after the injury while appellant was in the emergency hospital when examinations, blood transfusions and sedatives were administered. If they did, or omitted to do anything to prevent the recovery of the injured leg, such negligence was not less than one year and six months prior to the filing of the action on September 12, 1950. They served him again from May 5, 1949, to September 2, 1949. The treatment administered by all other defendants occurred prior to the latter date. If within that period any of the defendants had been negligent in their treatment of him, such negligence could not have been less than one year and ten days prior to the filing of the action. The first count is barred by the plain letter of the statute for the reason that any cause of action for a tort accrues on the day the wrong is done. Harding v. Liberty Hospital Corporation, 177 Cal. 520, 524, 171 P. 98; Jefferson v. Kenoss, 38 Cal.App.2d 496, 503, 101 P.2d 711. If the period of limitations cannot begin to run until the tort occurs, Mohn v. Tingley, 191 Cal. 470, 474, 217 P. 733, then it must commence on the day of the tort. And if a year elapses before action is filed, it is barred.
Appellant asserts that if perchance the first count of his fifth amended complaint is demurrable under the plain reading of the statute, his second count is secure by virtue of the allegation of the fraudulent concealment of his condition, which the defendants well knew and of which he was ignorant. However, appellant omits to point out his allegation that 'on September 2, 1949, he was informed by defendant Gillis as follows: that said left leg would never be of any material use and benefit to plaintiff; that plaintiff's general health was gravely endangered and would continue to be so endangered by reason of the condition of said left leg; that said left leg should be amputated. That plaintiff then believed and relied upon the truth of said information. That thereupon plaintiff became interested in saving his life and lost interest in saving his left leg.' It is thus seen by appellant's allegation that he knew all the facts concerning his condition at least one year and ten days prior to the filing of his complaint and therefore no concealment of facts alleged could have been the cause of delay beyond the date on which Gillis imparted to appellant full knowledge of the latter's true condition.
As to Shultz, Meier and Ferree, the complaint alleges that during their first ten days of service prior to March 6, 1949, they represented to plaintiff that they servered and ligated only one branch of the popliteal artery; that it was not necessary then to repair and restore the damaged artery or the severed sciatic nerve to effect a cure; that the accumulated blood in the tissues would be absorbed by natural process. As to Kelpien and Kelpien, the complaint alleges that they represented that they knew the facts of his case; knew the condition of the leg without taking X-ray pictures; they would effect a cure; it was not necessary to repair the artery or the sciatic nerve to effect a cure; the blood in the tissues would be absorbed; proper measures were being taken to guard against infection. But all their services preceded the disclosure to appellant of the leg's true condition by Dr. Gillis on September 2, 1949.
As to Dr. Gillis, the pleading sets forth substantially the same allegations of 'representations' made with respect to the Kelpiens, and that all the clotted blood and pus would drain from the incisions. He alleges all such representations were believed and relied upon; if he had known the falsity of the aforesaid representations he would have required the services of competent physicians and surgeons to treat his injured leg, and would have commenced this action well within one year of the commission by the defendants of their negligent acts described in count one.
Such allegations are not sufficient. Appellant had knowledge throughout the first year of his injury sufficient to put him on notice that something was preventing his recovery; for example, the removal prior to April 12, 1949, of 500 cubic centimeters of old blood and pus. Since he had means of gaining all available knowledge of the true status of his wound and had notice of its aggravated condition, he cannot avoid the force of the statute of limitation by merely pleading that he was deceived by the statements of the defendants. Lady Washington Consolidated Company v. Wood, 113 Cal. 482, 487, 45 P. 809.
In his attempt so to plead as to avoid the statute, appellant alleges that on September 2, 1949, Gillis told him that the left leg would never be of use again; that it gravely endangered and would continue to imperil his general health and that it should be amputated. Obviously he relied upon that advice for on the twentieth day thereafter Dr. Gillis removed the offending member. Now, such information imparted to appellant six months and seven days after the accident, by his physician in whose judgment he placed reliance, disposes of all contentions that appellant was prevented from filing his action by the fraudulent concealment of defendants. His reading on August 2, 1950, the reports of defendants filed with the Insurance Fund and his learning therefrom the knowledge of defendants concerning the fatal condition of his wound added nothing to the opinion of Dr. Gillis on September 2, 1949, when he advised that the leg would never be of use again. If a true knowledge of the steady deterioration of his wound was essential to the filing of an action, appellant was fully advised by Dr. Gillis after which he deferred his filing for a year and ten days. By reason of the fact that appellant had knowledge of such a character as would reasonably cause him to make a diligent investigation that would, in turn, have revealed all knowledge and acts of the defendants with reference to his injury, he is charged with having discovered the alleged fraud 'as of the time he would have discovered it' by the exercise of reasonable diligence in making his investigation. Consolidated R. & P. Co. v. Scarborough, 216 Cal. 698, 704, 16 P.2d 268, 270. The second count is insufficient in that it distinctly fails to allege any facts showing why appellant did not make such investigation at an earlier date 'and, if sooner made, why it would not have disclosed the fraud prior to the running of the period of limitations.' Ibid. Merely because the diagnoses of defendants were secreted in their own minds prior to Dr. Gillis' prognosis on September 2, 1949, appellant was not thereby relieved of the operations of the rule of pleading with reference to the tolling of the statute of limitations. See Crabbe v. White, 113 Cal.App.2d 356, 360, 248 P.2d 193.
Inasmuch as there is no allegation that either of the firms of physicians involved was the agent of the other or of Dr. Gillis, or that he was agent of any one of the five others who participated in the treatment of appellant, it cannot be said that appellant did not receive medical advice independent of that of all the others who treated him. For that reason the cases cited by appellant, Pashley v. Pacific Electric Ry. Co., 25 Cal.2d 226, 153 P.2d 325; and Bowman v. McPheeters, 77 Cal.App.2d 795, 176 P.2d 745, are not pertinent.
Judgment affirmed.
McCOMB and FOX, JJ., concur. --------------- * Subsequent opinion 270 P.2d 1. 1 Code of Civil Procedure, Sec. 335: 'The periods prescribed for the commencement of actions other than for the recovery of real property, are as follows: ' § 340. Within one year: * * * '3. An action for libel, slander, assault, battery, false imprisonment, seduction of a person below the age of legal consent, or for injury to or for the death of one caused by the wrongful act or neglect of another, or by a depositor against a bank for the payment of a forged or raised check, or a check that bears a forged or unauthorized indorsement * * *.'