Opinion
Page __
Rehearing Denied July 15, 1933.
Hearing Granted by Supreme Court Aug. 15, 1933.
Appeal from Superior Court, Shasta County; W. E. Herzinger, Judge.
Action by Clarence B. Kimball against the General Electric Company and others. From a judgment in favor of the plaintiff, the defendant named appeals.
Judgment affirmed.
[23 P.2d 296] Charles A. Christin, of San Francisco, for appellant.
Jesse W. Carter and Glenn D. Newton, both of Redding, for respondent.
OPINION
Mr. PLUMMER, Justice.
Other parties were made defendants in this action in the trial court, but do not appear upon this appeal, and our consideration is limited to the parties named.
The proceeding before us is an appeal by the General Electric Company, a corporation, from a judgment awarding damages to the plaintiff resulting from injuries received by the plaintiff on account of the negligent act of Dean Wilson, an employee of the General Electric Company. The injuries were received by the plaintiff on the 6th day of March, 1928, in the county of Shasta. The complaint in this action was filed on the 10th day of July, 1930. The appellant interposed the defense of the statute of limitations. The respondent relies upon fraudulent acts of concealment for the purpose of tolling the statute. No question is raised as to excessive damages awarded, nor as to the rulings of the court in instructing the jury.
Upon this appeal the following questions are presented: First, that the complaint does not state facts sufficient to constitute a cause of action; second, that the testimony does not support the verdict; and, third, that subdivision 4 of section 338 of the Code of Civil Procedure cannot be applied in actions founded upon tort. Other minor objections are urged, but the determination of the three issues above stated are decisive upon this appeal. The three issues above stated are so interrelated that in many instances what we have to say as to one is more or less an answer to the others.
The amended complaint, among other things, alleges that on the 6th day of March, 1928, the plaintiff was in the employ of the Pacific Gas & Electric Company, a corporation, as an electrician and general power house workman, at what is known as " pit 3 power plant" on Pit river in the county of Shasta, said power plant being then and there operated and controlled by the Pacific Gas & Electric Company. That on the same day the defendant, General Electric Company, a corporation, was engaged in repairing one of the generators in said pit 3 power plant, and had in its employ in making such repairs one Dean Wilson, who was then and there engaged in the discharge of his duties as an employee of the General Electric Company in repairing the generator just referred to. That on or about 4:40 p. m. of said day, while the plaintiff was at work in tightening a bolt on a by-pass pipe, the said Dean Wilson negligently and carelessly caused and permitted a large stay bolt, being a bolt about one-quarter inch in diameter, 54 inches in length, and weighing about 20 pounds, to drop a number[23 P.2d 297] of feet and strike the plaintiff a severe blow on the top of his head. That, as a result of being struck on the top of his head by said bolt, plaintiff received a compound fracture of his skull, which rendered him totally unconscious for a period of seventeen days, and in a semiconscious condition for several months thereafter. Plaintiff was required to undergo two surgical operations for the treatment of the fracture in his skull. In one of the surgical operations it was necessary to cut and remove a portion of the bone from his left shin and graft it into his skull. The result of the injury to the plaintiff caused the development of a form of pneumonia, from which he suffered for several weeks, and also a disease known as " phlebitis" of the right saphenous vein, all of which required medical and surgical treatment.
The complaint further shows that the plaintiff was under medical and surgical treatment from the date of the injury until the date of the commencement of the action. Other serious results following the injury are set forth in the complaint which we need not detail, but which appear with sufficient particularity to indicate that the plaintiff was, from the time of the injury until a short time before the commencement of this action, both mentally and physically incapacitated from attending either to the duties of his ordinary occupation or to any transactions relating or pertaining to the ascertainment of the facts or an investigation into the facts connected with his injuries, the party or parties responsible therefor, or to institute or prosecute an investigation which would lead to a disclosure of the parties responsible for his injuries, and the steps necessary to be taken by him.
The record does show that for a few months prior to the institution of this action the plaintiff acted as a watchman in the employ of the Pacific Gas & Electric Company, but, so far as disclosed, the record would indicate that at no time up to the beginning of the action was the plaintiff either physically or mentally able to perform the duties incumbent upon his former employment. So far as we read the record it does not appear that the injuries suffered by the plaintiff are seriously questioned.
The complaint further sets forth that, at the time the plaintiff received the injuries herein referred to, the plaintiff did not know, and had no means of knowing, that Dean Wilson was in the employ of the General Electric Company, a corporation; likewise, that the plaintiff did not know, and had no means of knowing, that the General Electric Company was repairing the generator upon which Dean Wilson was employed, and had no means of knowing or ascertaining that the injury which the plaintiff received was the result of the negligence of the defendant, General Electric Company. That the plaintiff received no information, and had no knowledge whatever, that the injuries which he received were caused by an employee of the General Electric Company, until on or about the 5th day of June, 1930, when there came into his possession a copy of a letter written by one J. D. McCarthy, claims adjuster for the Pacific Gas & Electric Company, to D. G. Martin, auditor for said company, which letter was found by plaintiff in the clubhouse at Volta power house, near Manton, in the county of Shasta, on or about the 5th day of June, 1930. This letter is in the following words and figures:
" Pacific Gas & Electric Company
" June 5, 1929
" Mr. D. G. Martin, Auditor
" Dear Sir: Herewith find check No. 12562 for $951.17 drawn on the Wells Fargo Bank and Union Trust Company by the General Electric Company in favor of the Pacific Gas and Electric Company.
" This check was issued to reimburse this company for one-half of the expense so far incurred for medical attention and compensation in the case of Clarence B. Kimball, an electrician and combination man who sustained a bad fracture of the skull on March 6, 1928, at Pit No. 1 Power House.
" At the time the accident occurred the General Electric Company had one of their electrical mechanics, L. A. Fitts, at Pit No. 1 supervising certain corrections and adjustments on one of the generators. To accommodate the General Electric Company and avoid the necessity of bringing extra help to the plant to assist Mr. Fitts with the work in hand, arrangements were made by which employees of the Shasta Division who were on this Company's payroll and employed at Pit No. 1, were loaned to the General Electric Company to help Mr. Fitts. It was also arranged whereby this Company would later bill the General Electric Company for the time of the employees so assigned. One of these men, Dean Wilson, accidentally permitted a large stay bolt, 4 feet 7 inches by 1 1/4 inches, to roll off the top of the generator and in falling it struck Kimball a glancing blow on the crown of his head, lacerating his scalp and badly fracturing his skull. Kimball's life was despaired of for several days and it became necessary to remove a section of the skull that was pressing on his brain. This operation evidently saved his life and he gradually recovered. To repair the large hole in his skull, however, it was found advisable to bring Kimball to San Francisco where a section of bone taken from his shin was grafted to his skull, thereby closing the hole which previously was only protected by thin scalp tissue. This latter operation was also a successful one and Kimball returned to work on October 10th, 1928. While he made a remarkable
[23 P.2d 298]recovery he will be under the observation of Drs. Naffziger and Fleming for a long time to come.
" Although Kimball has sufficiently recovered to return to work he will never entirely regain his normal condition. Dizzy spells can be anticipated which will preclude him from doing his regular work of lineman and electrician. Injuries of this kind always leave some permanent disability and a disability rating will no doubt be requested at a later time and granted by the Commission when applied for.
" In addition to sharing the expense so far incurred the General Electric Company has verbally agreed to share all future expense and any permanent disability rating that may be made.
" Very truly yours,
" J. D. McCarthy, Claims Adjuster."
The complaint further shows that the plaintiff was taken to San Francisco, placed in a hospital, kept there for several months, and finally returned to his home in Shasta county; and further alleges that from the time of receipt of his injuries, to wit, on the 6th day of March, 1928, up to and including the 16th day of March, 1930, the plaintiff was neither physically nor mentally able to make any investigation as to the cause of the accident, or as to who was responsible therefor; that notwithstanding his physical and mental condition the plaintiff did make inquiries of the employees of the Pacific Gas & Electric Company, to wit, of W. A. Dunwoody, G. R. Milford, and J. D. McCarthy, relative to the manner in which he received the injury, care, treatment, and compensation to which he was entitled; that during all of said time Dunwoody was foreman of pit No. 3 power house; G. R. Milford was division manager of the Pacific Gas & Electric Company, and J. D. McCarthy was the claims adjuster for said company; that during all of said time plaintiff was informed and believed that Dean Wilson was an employee of the Pacific Gas & Electric Company, and plaintiff did not know, and had no means of knowing, that Dean Wilson was, at the time of the injury to plaintiff, an employee of, and was under the control, direction, and supervision of, the General Electric Company; that from 6th day of March, 1928, up to the 16th day of March, 1930, plaintiff caused inquiry to be made of Dean Wilson, W. A. Dunwoody, G. R. Milford, and J. D. McCarthy, for information relative to the cause of the accident which resulted in the injury to plaintiff, and also who was responsible for the injury, and plaintiff was at all times advised and believed that, at the time he received said injury, Dean Wilson was an employee of the Pacific Gas & Electric Company, and that said company was responsible to plaintiff under the provisions of the Workmen's Compensation, Insurance, and Safety Act (St. 1917, p. 831, as amended), and at no time was plaintiff advised by any one from whom he made inquiry that defendant, General Electric Company, had any connection with the injury which the plaintiff had received, or was in any wise liable to the plaintiff therefor.
The complaint then alleges that the General Electric Company, well knowing its responsibility, and for the purpose of defrauding plaintiff out of his cause of action, fraudulently and deceitfully agreed with Pacific Gas & Electric Company to the effect that, if the facts in relation to plaintiff's said cause of action against said General Electric Company were concealed from plaintiff, etc., the General Electric Company would pay the Pacific Gas & Electric Company one-half of any amount which said Pacific Gas & Electric Company was required to pay to and on behalf of the plaintiff, for medical, surgical, hospital expenses, and compensation to which the plaintiff was entitled as an employee of the Pacific Gas & Electric Company under the provisions of the Workmen's Compensation, Insurance, and Safety Act. That the plaintiff had no knowledge of the agreement or understanding between the Pacific Gas & Electric Company and the General Electric Company, and no means of ascertaining the facts in relation thereto.
The answer of the appellant, while setting forth that Dean Wilson was in the general employ of the Pacific Gas & Electric Company, admits that Dean Wilson was, at the time the injury was inflicted upon the plaintiff, in the special employ of the General Electric Company.
The record shows that on the 10th day of March, 1928, Lester A. Fitts, the person in charge of the repairing of the generator referred to, an employee of the General Electric Company, reported to the appellant the circumstances which led to the injury of the plaintiff, and also stating the serious nature of the injuries. Thereafter, on March 23, 1928, at the request of the General Electric Company, Mr. Fitts went to San Francisco and made a personal report of the injury to officers of the appellant. Likewise, Mr. McCarthy, the claims adjuster for the Pacific Gas & Electric Company, advised the General Electric Company of the injury, and of the fact that Dean Wilson was assisting the engineer of the General Electric Company on the work being done at pit No. 3. This report was made to Mr. Mahoney and to Mr. Alvord, Alvord being the local manager of the appellant, Mr. Mahoney being the local auditor of the western branch maintained by the appellant.
A number of letters appear in the record as passing between the claims adjuster of the Pacific Gas & Electric Company and the auditor of the General Electric Company, relative to the amount of money expended by the Pacific Gas & Electric Company for medical [23 P.2d 299]and surgical attention given the plaintiff, and the settlement made by the Pacific Gas & Electric Company with the plaintiff, showing that the General Electric Company paid to the Pacific Gas & Electric Company one-half of the expenses just referred to, and also one-half of the amount of the settlement made by the Pacific Gas & Electric Company with the plaintiff, with the consent of the Industrial Accident Commission. Nowhere in the record does it appear that the Industrial Accident Commission was advised of the liability of the General Electric Company, nor of the fact that the General Electric Company was paying one-half of the expenses incurred by the Pacific Gas & Electric Company, nor of any part of the amount agreed upon in the settlement entered into between the plaintiff and the Pacific Gas & Electric Company. The agreement of settlement submitted to the Industrial Accident Commission, approved by the General Electric Company in the letters to which we have referred, is entirely silent as to the liability of the General Electric Company, or its responsibility to the plaintiff on account of the injuries sustained by him. We quote from the agreement the following: " The undersigned, Clarence B. Kimball, employee, and Annie B. Kimball, his wife, and Pacific Gas and Electric Company, employer, desiring to compromise and settle all liability which may exist against said employer in favor of said employee, and to obtain the approval of the Industrial Accident Commission thereto, hereby submit to said Commission the following agreed statement of facts: 1st. That said employee claims an industrial injury on the 6th day of March, 1928, while in the service of said employer, consisting of a fractured skull; 2nd. That at such time said employee received a wage of $135.00 per month; 3rd. That said disability is partial and permanent; 4th. That compensation has been paid to said employee up to the date of this agreement in the total sum of $593.72; 5th. That the parties hereto are desirous of compromising the liability for the following reason: A question exists as to the nature and the extent of disability caused by the injury, and whether the present disability is due to said injury." The agreement then proceeds to fix the amount of the settlement at the sum of $3,500.
The record shows that following the execution of this agreement the Pacific Gas & Electric Company acknowledged receipt of a check from the General Electric Company in the sum of $1,826.50, covering one-half of the settlement, and other small items of expense incurred by the Pacific Gas & Electric Company. The record shows that plaintiff in this action had no knowledge of the negotiations being carried on between the appellant and the Pacific Gas & Electric Company, nor did he have any means of ascertaining the contents of the letters passing between the Pacific Gas & Electric Company and the General Electric Company until he accidentally discovered the copy of the letter to which we have hereinbefore referred. All of these letters and the negotiations carried on between the two companies being of a private and secret nature, it is evident that the plaintiff could not have, by the exercise of ordinary diligence, discovered any facts in relation thereto. As we have stated, the mental and physical condition of the plaintiff and the serious nature of his injuries must be taken into consideration in determining whether he did or did not, under the circumstances, exercise due diligence in endeavoring to discover the facts relative to his injury and the company responsible therefor.
The record shows that when Dean Wilson, employee of the appellant, was requested, by the wife of appellant, for a statement of the injury, he mentioned only the fact of the injury being caused by the falling of a bolt, and did not disclose for whom he was working at the time of the injury.
In arriving at the true facts as to whether there was privity of action between the Pacific Gas & Electric Company and the General Electric Company, and the inferences that might properly be drawn by the jury therefrom that the two companies were acting in concert, and that a tacit understanding existed between them that the liability of the General Electric Company should be kept concealed, and therefore the amount of damages that should be awarded to the plaintiff held down to the minimum, consideration may properly be given to section 26 of the Workmen's Compensation, Insurance, and Safety Laws. By the terms of that section, under the circumstances disclosed in the record before us, the Pacific Gas & Electric Company was, during all the times mentioned herein, entitled to have and recover from the General Electric Company every dollar of expense incurred by it under the provisions of the act referred to, in caring for and making payment to the plaintiff in this action. No such action was begun. If any such action had been begun, it would have fully disclosed the liability of the appellant to the plaintiff in this action, and also the liability of the appellant to pay in full whatever should be allowed to the plaintiff under the provisions of the Workmen's Compensation, Insurance, and Safety Laws. Being an employee of the Pacific Gas & Electric Company, a relation of trust and confidence existed between that company and the plaintiff. It is unnecessary to cite authorities to the effect that, wherever a relation of trust and confidence exists, a full disclosure of all the facts and circumstances necessary to show who was liable for the injury suffered by the plaintiff should have been made by the Pacific Gas & Electric Company. This disclosure was not made to the plaintiff, nor does the record show it was made to the Industrial Accident Commission.[23 P.2d 300]The record shows, through the negotiations therein set forth, that the General Electric Company was advised of what was being done by the Pacific Gas & Electric Company, and by reason of the privity shown to have existed between them, and the payment of one-half of the expenses, that the General Electric Company ratified and approved what was being done by the Pacific Gas & Electric Company. These are inferences which, from the circumstances disclosed by the record, the jury was fully warranted in drawing.
The text found in 12 R.C.L., page 310, § 71, applies not only to the Pacific Gas & Electric Company, but also to Dean Wilson as the employee of the General Electric Company, to wit: " Subject-‘ Half Truths': Even though one is under no obligation to speak as to a matter, if he undertakes to do so, either voluntarily or in response to inquiries, he is bound not only to state truly what he tells, but also not to suppress or conceal any facts within his knowledge which will materially qualify those stated. If he speaks at all he must make a full and fair disclosure. To tell a half truth has been declared to be equivalent to a concealment of the other half. A partial and fragmentary disclosure, accompanied by the wilful concealment of material and qualifying facts, is not a true statement, and is as much a fraud as an actual misrepresentation, which in effect it is."
We conclude, in view of the authorities hereinafter cited, that the complaint states a cause of action, and the testimony is sufficient to support the verdict that subdivision 4 of section 338, of the Code of Civil Procedure, is applicable to actions based upon tort, whether the fraud consists in the initial act or in the concealment of the cause of action.
In Kane v. Cook, 8 Cal. 449, the facts upon which the court held the plea of the statute insufficient were as follows: The plaintiffs, residents of New York, consigned certain goods to the defendant, a resident of this state. The goods were received by the defendant at San Francisco on June 20, 1853, and were sold by him on the same day. No account of sale was ever rendered to the plaintiffs. In 1856, a demand was made upon the defendant at San Francisco, and, upon his refusal to pay over the proceeds, this suit was commenced. The defendant pleaded the statute of limitations. The court in overruling the plea of the defendant stated the law as follows: " It does not necessarily follow that the Statute of Limitations runs against the plaintiffs, from the day the proceeds of the consignment came into the defendant's hands. It appears from the evidence, and it is stated as a fact in the opinion of the Court below, that the defendant never rendered any account of sales to the plaintiffs, and there is nothing in the record which shows that they ever had any knowledge of the sales until shortly previous to the commencement of this suit. * * * It was the duty of the defendant not only to inform the plaintiffs of the sales, but to remit the proceeds. His neglect not only deprived them of their funds, but kept them in ignorance of their rights. To hold that the Statute of Limitations ran against them under such circumstances, would be to permit the defendant to take advantage of his own wrong; and to sustain a defence which, in conscience, he ought not to be permitted to avail himself of." The opinion further, in speaking of the diversity of the opinion of different courts, ruled as follows: " In this diversity of opinion on the question, we are free to adopt that rule which will best tend to advance justice, and prevent the perpetration of fraud; and we therefore hold that in all cases a fraudulent concealment of the fact, upon the existence of which the cause of action accrues, is a good answer to the plea of the Statute of Limitations."
In Lightner Mining Co. v. Lane, 161 Cal. 689, 120 P. 771, Ann.Cas. 1913C, 1093, the Supreme Court had before it the question as to whether, in an action for damages resulting from negligence, the statute begins to run from the fact and date of the act or from the discovery of the negligence, or of the negligent person. It was there held, in the absence of fraud in the act, or of fraudulent concealment, the statute begins to run from the date of act and fact of negligence. A long list of cases are cited to the effect that, notwithstanding fraudulent concealment, the limitation runs from the commission of the injury. However, on page 697, as the case is reported in vol. 161 Cal. 120 P. 774, a large number of cases are cited showing that fraudulent concealment delays the running of the statute until the injured parties discover, or with reasonable diligence might have discovered, the facts constituting the injury and cause of action.
On the question of fraudulent concealment the court quotes from the opinion of Bailey v. Glover, 21 Wall. (88 U. S.) 342, 349, 22 L.Ed. 636, as follows: " We are of opinion * * * that the weight of judicial authority, both in this country and in England, is in favor of the application of the rule to suits at law as well as in equity. And we are also of opinion that this is founded in a sound and philosophical view of the principles of the statutes of limitation. They were enacted to prevent frauds; to prevent parties from asserting rights after the lapse of time had destroyed or impaired the evidence which would show that such rights never existed, or had been satisfied, transferred, or extinguished, if they ever did exist. To hold that by concealing a fraud or by committing a fraud in a manner that it concealed itself until such time as the party [23 P.2d 301]committing the fraud could plead the statute of limitations to protect it, is to make the law which was designed to prevent fraud the means by which it is made successful and secure. And we see no reason why this principle should not be as applicable to suits tried on the common-law side of the court's calendar as to those on the equity side. * * * We hold that when there has been no negligence or laches on the part of a plaintiff in coming to the knowledge of the fraud which is the foundation of the suit, and when the fraud has been concealed, or is of such character as to conceal itself, the statute does not begin to run until the fraud is discovered by, or becomes known to the party suing, or those in privity with him."
The decision in Kane v. Cook, supra, is cited and approved.
Without further analyzing or referring to the opinion in the case of Lightner Mining Co. v. Lane, supra, it is sufficient to state that that case and the authorities there cited establish the law in this state that mere ignorance of the existence of the injury, or of the facts constituting the injury, or of the identity of the person liable therefor, will not toll the running of the statute, but, in cases of fraud, the statute is tolled until the discovery of the fraud, whether it be in the act itself or in the concealment of the facts until the discovery of the fraud or until discovery should have been made by the exercise of reasonable diligence.
A number of cases are cited by the appellant to the effect that the statute begins to run from the date and fact of the injury. An examination of these cases, however, discloses that they are all malpractice cases in which the plaintiff knew at all times the party committing the act and the injury committed, and we find nothing in any of the California malpractice cases cited holding that the statute of limitations cannot be tolled by fraudulent concealment in actions, based upon tort or negligence. The facts involved in the malpractice cases are such as to render them readily distinguishable from the case at bar, and also clearly indicate that, while the rulings in the respective cases set forth the law as generally followed, when applied to similar facts, the rule announced therein is neither controlling nor applicable here.
The case of Becker v. Porter, 119 Kan. 626, 240 P. 584, decided by the Supreme Court of Kansas, does hold that the statutory provision awarding relief on the grounds of fraud by tolling the statute until discovery of the fraud is had does not apply to tort actions for negligent personal injuries. The weight of authority, however, is clearly against the holding had by the Kansas court. A reading of the opinion in the case of Becker v. Porter, supra, leads to the conclusion that the holding of the court would have been the same upon the pleadings presented to it, irrespective of what is said therein as to the tolling of the statute in tort actions. Being directly contrary to the rule followed in this state, the case of Becker v. Porter, supra, cannot be considered as authority.
In 12 Cal. Jur., page 777, the text on jurisdiction in actions involving fraud, supported by numerous citations, reads as follows: " Where, in cases involving fraud, the only relief which can be granted is equitable, the jurisdiction of equity is, of course, exclusive. In other cases, both law and equity have concurrent jurisdiction. It is clear that where adequate relief cannot be granted in a court of law the case is a proper one for equitable relief. Conversely, where an action at law will afford adequate relief, equity may refuse to act." To the same effect is the text in 37 C. J., page 974, to wit: " Fraudulent concealment of a cause of action does not toll the statute where the latter creates the right and makes the cause of action conditional upon suit being brought within a specified time. In many jurisdictions the exception is incorporated in the statute itself, whereby in various although similar terms the operation of the statute is postponed, where the cause of action is fraudulently concealed by defendant, until the discovery of the cause of action, or for a time fixed after such discovery. The statute applies both at law and in equity, and indeed it has been declared that the statute was enacted for the purpose of enabling parties to set up the fraud of defendant in a court of law as well as in a court of equity." In the same volume of C. J. on page 972, we find the following: " But in actions at law, where the question whether a fraudulent concealment of the fact upon the existence of which the cause of action accrues would avoid the statute of limitations has also frequently arisen, there has been considerable conflict of opinion. In the absence of a statutory exception it is held in some jurisdictions that such concealment does not postpone the operation of the statute of limitations. The weight of authority, however, supports the contrary view and follows the rule which obtains in equity, under which such a concealment is a good reply to a plea of the statute of limitations." On page 978 of the same volume, it is said: " Fraudulent concealment may consist in fraud connected with or constituting a cause of action, or it may consist of subsequent acts designed to conceal the cause of action originating without fraud. The concealment of a cause of action as contemplated by the rule suspending for that reason the operation of the statute of limitations is considered as distinct from the fraud in the cause of action itself, fraud as the ground of relief, from the discovery of which the statute begins to run." A fraudulent concealment, of course, must refer to acts or conduct after the commission of the act resulting in the injury. It is further[23 P.2d 302]said: " Although a fraud may give the right to an action it will not for that reason, in the absence of a trust relation, or some subsequent active concealment, constitute a fraudulent concealment of that cause of action."
In Waugh v. Guthrie Gas, Light, Fuel & Improvement Co., 37 Okl. 239, 131 P. 174, L.R.A. 1917B, 1253, a well-considered case and one in which innumerable authorities are cited, it is held in an action for damages based upon personal injuries that " fraudulent concealment constitutes an implied exception to the statute of limitations, and a party who wrongfully conceals material facts, and thereby prevents a discovery of his wrong, or the fact that a cause of action has accrued against him, is not allowed to take advantage of his own wrong by pleading the statute, the purpose of which is to prevent wrong and fraud." It is further held therein that " the mere failure to disclose that a cause of action exists is not sufficient to prevent the running of the statute. There must be something more; some actual artifice to prevent knowledge of the fact; some affirmative act of concealment, or some misrepresentation to exclude suspicion and prevent inquiry."
From the facts set forth in the record we think the jury had a sufficient basis to find that there is something more in the instant case than the mere failure to disclose the fact that Dean Wilson was an employee of the appellant at the time of the injury. In the first place there was a trust relation between the Pacific Gas & Electric Company and its employee, the plaintiff in this action, which imposed upon the Pacific Gas & Electric Company the duty of making a full disclosure. To all the inquiries made by the plaintiff, no information was vouchsafed, other than as to the liability of the Pacific Gas & Electric Company under the Workmen's Compensation, Insurance, and Safety Laws. To all of these acts the jury had a right, from the facts disclosed, to draw the inference that the appellant was, not only a silent, but an active, participant therein, paying half the expense, through negotiations had with the Pacific Gas & Electric Company, in such manner that the plaintiff could not, by reasonable diligence, ascertain the true facts. The plaintiff had no means, and no right to inquire into the private correspondence or negotiations taking place between the two companies, until the institution of the action which brought to light what the record herein discloses.
Dean Wilson, also, as an employee of the appellant, concealed the true facts when inquiry was made of him. Corporations only act through their agents, and, where agents fail to speak where it is their duty to speak, a corporation is liable. Subdivision 3 of section 1572, of the Civil Code reads: " The suppression of that which is true, by one having knowledge or belief of the fact" constitutes actual fraud. Being privity to all the acts of the Pacific Gas & Electric Company and of its agents, in suppressing the true facts as well as the suppression of the true facts by its employee, the appellant is shown to have actively participated in the concealment alleged in plaintiff's complaint.
In Brookshire v. Burkhart, 141 Okl. 1, 283 P. 571, 67 A.L.R. 1059, it is held that fraudulent concealment constitutes an implied exception to the statute of limitations, and a party who wrongfully conceals material facts, and thereby prevents a discovery of his wrong, or the fact that a cause of action has accrued against him, is not allowed to take advantage of his own wrong by pleading the statute. Also, if the fraud itself be secret in its nature and such that its existence cannot readily be ascertained, or if there be a fiduciary relation between the parties, there need be no evidence of fraudulent concealment other than that implied from the transaction itself-citing 17 R.C.L. 861, 862.
The opinion in the case of Brookshire v. Burkhart, supra, expressly overrules the case of Kerley v. Hoehman, 183 P. 980, in so far as it is held that concealment does not toll the statute of limitations.
In support of its contention that the complaint does not set forth sufficient facts to toll the statute, our attention is particularly called to the case of Lady Washington Consolidated Co. v. Wood, 113 Cal. 482, 45 P. 809, which, upon the question of sufficiency of the pleadings, appears to have been followed in all the subsequent California cases. It is held in that case that it is not enough that the plaintiff merely avers that he was ignorant of the facts at the time of their occurrence, and had not been informed of them until within three years. He must show that the acts of fraud were committed under such circumstances that he would not be presumed to have any knowledge of them, and that they were done in secret, or were kept concealed; and he must also show the times and the circumstances under which the facts constituting the fraud were brought to his knowledge, so that the court may determine whether the discovery of these facts was within the time alleged, and as the means of knowledge are equivalent to knowledge if it appears that the plaintiff had notice or information of circumstances which would put him on an inquiry which if followed would lead to knowledge, or that the facts were presumptively within his knowledge, he will be deemed to have had actual knowledge of these facts. The Supreme Court, in Lightner v. Lane, supra, approved this holding, and in the recent case of Consolidated Reservoir & Power Co., a corporation, v. Scarborough et al., 216 Cal. 698, 16 P.2d 268, the holding in the Lady Washington Case is approved, and practically all the other California [23 P.2d 303]cases so holding are cited. The record in this case, as we have set it forth, completely answers these objections. The plaintiff did make inquiry of the parties having knowledge of the actual facts, but the facts were not disclosed to him. He made inquiry of his employer, or of the agents of his employer, where we have shown a trust relation existed, and the true facts were suppressed. The manner in which the plaintiff discovered the true facts, or was given a lead which led to the disclosure of the true facts, is set forth in the complaint. The privacy of the transaction which concealed the true facts, and the privity existing between the two companies, is fully disclosed.
The appellant's contention that the right of action is given to the plaintiff in this case by the provisions of subdivision 3 of section 340 of the Code of Civil Procedure is without merit, the contention being that the right is conferred in that subdivision of the section of the Code of Civil Procedure, and that it is conditioned upon the beginning of an action within one year, and that, where a right is conferred, coupled with a condition, the condition becomes a part of the right, and, unless enforcement is sought within the time limited in the condition, the right is barred or ceases to exist. In support of this contention, the case of Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210, is relied upon, and likewise the cases therein cited, which hold that an action for the death of a person caused by the negligence of another is a right given by statute which must be brought within one year, and that the right and the condition must be raised together.
A large number of cases are cited in the annotations following the case of Brookshire v. Burkhart, 67 A.L.R., beginning on page 1070, holding that, where a right is conferred by statute, coupled with a condition as to the time when the right may be exercised, the right of action ceases at the end of the year or of the time specified. That the time specified is a condition and not a limitation. In the same annotations are found a number of cases announcing a different rule and holding that the time specified is a limitation and not a condition. The case of Brookshire v. Burkhart, supra, is one of the leading cases holding that the time specified in the statute is a limitation and not a condition.
Irrespective of the cases which hold that a right of action for the death of one caused by the negligence of another, given to heirs, is conditioned upon the action being begun within a certain length of time, the argument of appellant is unsound, based upon any of the cases involving the death of the injured person, for the simple reason that the right of action for personal injuries inherent in the individual himself who is injured is a common-law right of action, and is not given by the statutes.
The only authority which we need to cite in support of the foregoing statement is volume 2, page 119, Cooley's Blackstone (4th Ed.), where the right of action for personal injuries is shown to have existed long before the enactment of any statutes relating thereto, or of any statute giving a right of action based upon the death of any one caused by the negligence of another.
The minor objections urged by the appellant, while considered, are not such as to call for the further lengthening of this opinion.
The judgment is affirmed.
We concur: PULLEN, P. J.; R. L. THOMPSON, J.