Newton v. Los Angeles Transit Lines

[625]

McCOMB, J.

From a judgment in favor of defendant after trial before the court without a jury, in an action to recover damages for personal injuries, plaintiff appeals.

Facts:

Plaintiff instituted the present action to recover for personal injuries arising out of an accident that occurred on one of defendant’s streetcars on October 20, 1948.

The complaint was filed November 16,1949. In an endeavor to avoid the bar of the statute of limitations, section 340, subdivision 3 of the Code of Civil Procedure,

*

plaintiff alleged in substance that defendant’s agent advised and assured plaintiff defendant was liable for the accident; that defendant would assume complete liability for the accident and reimburse plaintiff for all medical expenses, loss of income and other expenses in connection with the accident, and it would be unnecessary for plaintiff to consult an attorney; that defendant carried on negotiations for settlement with plaintiff until October 25, 1949, and plaintiff relied upon said representations and was lulled into a sense of security and therefore did not file an action sooner.

Defendant raised the affirmative defense that the cause of action was barred by the provisions of the Code of Civil Procedure above mentioned. After taking evidence the trial court sustained defendant’s defense that the statute of limitations had run and made a finding accordingly.

Questions:

First:

Was there substantial evidence to sustain the trial court’s finding that the statute of limitations barred plaintiff’s cause of action?

Yes.

There was a conflict in the evidence. Therefore we must presume the evidence most favorable to defendant (respondent) is true. In addition to other evidence Mr. Burgess, defendant’s agent, testified (a) that his last communication with plaintiff relative to a settlement was May 26, 1949; (b) denied ever telling plaintiff defendant was liable for the accident; (c) denied telling plaintiff defendant would assume complete liability for the accident or reimburse her for special damages, pain and suffering; (d) denied telling plaintiff it would be unnecessary for her to consult an attorney. This was substantial evidence to sustain the trial court’s finding that plaintiff did not rely on any statements of defendant’s agent