Tell v. Taylor

Appellant, Fannie T. M. Tell, filed her complaint against the respondent, Wesley Taylor, alleging two causes of action, the first for malpractice, the second for

On this appeal from the judgment, it is argued that the trial court erred in: (1) granting the respondent’s motion for a summary judgment as the affidavits raised a triable issue of fact; (2) concluding that the statute of limitations was applicable as to both causes of action.

The first argument on appeal is that the trial court erred in granting a summary judgment because the affidavits raised a triable issue of facts, i.e., whether both causes of action were based on the same facts. While we are well aware that the summary judgment procedure is drastic and should be used with caution in order that it may not become a substitute for existing methods of determining issues of fact, the granting or denying a motion for summary judgment is determined by the sufficiency of the affidavits on file and the affidavits in support of the motion should be strictly construed and those of the opponent liberally construed (Family Service Agency of Santa Barbaras. Ames, 166 Cal.App.2d 344 [ 333 P.2d 142 ]).

Respondent’s affidavit reveals the following facts: On June 22, 1957, the appellant fell in front of her fireplace and injured her left hip. On June 23, the respondent first saw her at her home, and again on June 24, 27, 29, and July 1, 8 and 13. On each occasion, the respondent, an osteopathic physician, gave her general manipulative treatment and attempted to determine whether the soreness might be due to a fracture. When the respondent saw the appellant on June 23 and on several occasions thereafter, he urged that X-rays be taken of the left hip to determine whether or not there was a fracture. Respondent urged the appellant and her husband to have X-rays taken but the appellant refused until July 15. On July 15, 1957, X-rays were taken at the respondent’s office, and revealed a fracture near the hip joint. The respondent immediately told the appellant about the fracture and advised her to have it treated by an orthopedic specialist. The respondent did not see or talk to the appellant after her departure from his office on July 15, 1957; he did, however,

Appellant’s affidavits indicate that the respondent treated her on the dates indicated above; that throughout this time, he continually assured her and her husband that she would be all right and sustain no permanent injury; that even after the X-rays of July 15, which revealed the fracture, he told her not to worry about the future and that her bone would knit and heal in due course of time, and all she had to do was to be patient and wait.

Appellant’s affidavits further indicate that after determination of the fracture, she was immediately placed under the care of another doctor and never again seen or treated by the respondent. Surgery was performed on appellant’s hip in July 1957, and the appellant and her husband were informed in July 1957 that it would take a long time until her permanent condition could be determined. About March 16, 1958, additional X-rays of the appellant were taken and revealed that the pin inserted in her leg in the operation of July 1957 had slipped, so that the bone had not healed and her injury was permanent.

On a motion for summary judgment under section 437e of the Code of Civil Procedure, the purpose of the motion is to discover whether or not there are triable issues of fact. If the opposition affidavit sets up facts showing that there are triable issues of fact, such facts must be accepted as true, and the motion denied (Coyne v. Krempels, 36 Cal.2d 257 , 260 [ 223 P.2d 244 ]). However, the counteraffidavit must show facts from which it appears that the opposing party has a good cause of action on the merits (Johnson v. Holt, 173 Cal.App.2d 107 [ 342 P.2d 398 ]). On the other hand, if the positive affidavit in support of the motion is sufficient to support the granting of the summary judgment and if the counteraffidavit of the opposing party does not show any triable issue of fact, then the motion for summary judgment should be granted (Keylon v. Kelley, 188 Cal.App.2d 490 [ 10 Cal.Rptr. 549 ]). We think that in the instant ease, the trial court properly followed all of the above-mentioned rules, and properly determined that there was no issue of fact to be tried, that the issue was one of law alone, and that the summary judgment procedure was appropriate (Keylon v. Kelley, supra).

Code of Civil Procedure, section 340, subdivision 3, provides that the statute of limitations in actions against a physician for malpractice or negligence is one year. The statute runs from the day on which the alleged negligent acts were committed (Wetzel v. Pius, 78 Cal.App. 104 [ 248 P. 288 ]; Agnew v. Parks, 172 Cal.App.2d 756 [ 343 P.2d 118 ]), except that the statute does not run during the time a plaintiff is ignorant of the cause of his injury and could not with reasonable care and diligence ascertain such cause (Stafford v. Shultz, 42 Cal.2d 767 [ 270 P.2d 1 ]). Appellant here, relying on Agnew v. Larson, 82 Cal.App.2d 176 [ 185 P.2d 851 ]; Huysman v. Kirsch, 6 Cal.2d 302 [ 57 P.2d 908 ]; Trombley v. Kolts, 29 Cal.App.2d 699 [ 85 P.2d 541 ]; Costa v. Regents of University of California, 116 Cal.App.2d 445 [ 254 P.2d 85 ], and Stafford v. Shultz, supra, attempts to argue that she did not discover respondent’s negligence in the diagnosis and treatment of her injury until March 16, 1958, and that, therefore, the action is not barred by the statute. There is no merit in this contention, for while the statute of limitations does not commence to run in an action of this kind until the plaintiff discovers his injury, or through the use of reasonable diligence should have discovered it (Stafford v. Shultz, supra), still the facts as disclosed by appellant’s affidavit here show

As to her second cause of action for deceit, the appellant argues that the trial court erred as the statute of limitations for fraud is three years under subsection 4 of section 338 of the Code of Civil Procedure. However, appellant has cited no authority in this state or elsewhere to indicate that it is possible to extend the statute of limitations in a personal injury action by bringing it on a theory of fraud. Rather, even though the plaintiff alleges false representations on the part of the physician or fraudulent concealment, our courts have always treated the action as one for malpractice (Stafford, v. Shultz, supra; Bowman v. McPheeters, 77 Cal.App.2d 795 [ 176 P.2d 745 ]). The same is apparently true in other jurisdictions (see Kleinmen v. Lack (1958), 6 App.Div.2d 1046 [ 179 N.Y.S.2d 194 ]; Tulloch v. Haselo (1926), 218 App.Div. 313 [ 218 N.Y.S. 139 ]).

Judgment affirmed.

Draper, J., and Shoemaker, J., concurred.

A petition for a rehearing was denied May 17, 1961.