Opinion
Rehearing Granted July 25, 1930
Appeal from Superior Court, Alameda County; Leon E. Gray, Judge.
Action by Alfryda Petersen against Ward M. Beckwith. Judgment of nonsuit, and plaintiff appeals.
Reversed.
COUNSEL
Resleure & Hill, of San Francisco, and W.H. Hollander, of Oakland, for appellant.
Ford, Johnson & Bourquin, of San Francisco, for respondent.
OPINION
PER CURIAM.
Plaintiff sued for damages in a complaint setting up two separate causes of action. Trial was had before a jury, and, at the close of plaintiff’s case, the trial court granted defendant’s motion for a nonsuit. The plaintiff appealed and filed her transcript on May 31, 1929. Her opening brief was filed on November 27, 1929. No brief having been filed by the defendant the cause was placed upon the calendar of this court for June 9th of this year, and notice was served upon the defendant to appear at that time and show cause why the judgment should not be reversed. The defendant to this date has not appeared to defend the judgment.
The first cause of action was for damages for malpractice, the second was for damages for fraud. In May, 1924, plaintiff fell and broke her leg. She called in defendant who had been her family physician for some six or seven years. He so negligently treated and advised her that the bone failed to heal and she suffered a permanent injury. Though the evidence conclusively showed negligence on defendant’s part the first cause of action was manifestly barred by the statute of limitations and the nonsuit was properly granted as to the first cause of action. See Johnson v. Nolan (Cal.App.) 288 P. 78.
The second cause was based upon allegations of fraud and misrepresentations. The complaint alleged, and the evidence showed, the confidential relation existing between plaintiff and defendant, the reliance of plaintiff in the judgment and advice of the defendant, and the misrepresentations made to plaintiff by defendant as to the treatment which had been given her injured limb. It was alleged and proved that defendant knew that these representations were false, also that they were made for the purpose of deceiving plaintiff and to keep her from calling in other physicians who would discover defendant’s negligence. The injury arising from the alleged fraud was shown to be the permanent deformity and pain in the leg which could not be properly cured because of the long delay in treatment— a delay which it was shown was caused solely by plaintiff’s reliance upon the misrepresentations of the defendant. To forestall the plea of the statute of limitations as to this cause of action, the plaintiff pleaded and proved her discovery of the fraud within a few months of the institution of the action, hence the statute could not support a nonsuit as to this cause.
Upon the ground specified in the motion, the failure of the evidence to show fraud on defendant’s part in concealing the condition of plaintiff’s leg, the evidence proves every essential element of the complaint.
The judgment is reversed.