Sprague v. Morgan

McGOLDRICK, J. pro tem.

*

Barbara Lee Sprague instituted this action against attorney Victor H. Beauzay for general damages in the amount of $31,000, plus special damages in an undetermined amount, allegedly resulting from defendant’s negligence and unskillful handling of plaintiff’s claim before the Industrial Accident Commission, and his wilful and fraudulent concealment of said negligence, all of which caused her to lose medical treatment and awards of money for. her injuries, to which she claimed she would otherwise have been entitled. The court, sitting without a jury, found in favor of defendants and from this judgment plaintiff appeals.

It appears that on January 1, 1949, appellant suffered a back injury when she slipped and fell while pursuing her occupation of a ■ waitress. On December 13, 1951, the Industrial Accident Commission awarded her a permanent disability rating of 31 per cent, the amount of which was subsequently paid. On or about August 4, 1953, appellant consulted respondent, stating to him that her condition had

[521]

worsened and requested he secure an order for further medical treatment from the commission. On November 20, 1953, respondent filed a petition for such treatment, but made no request then or at any time for a change in her permanent disability rating, nor did he discuss the matter with her. The commission heard the petition for further medical benefits on May 12, 1954, and denied the same on July 27, 1954. Respondent acted as appellant’s counsel throughout the period from about August 4, 1953, to about August 7, 1954. She subsequently retained another attorney who on February 25, 1955, filed a petition before the Industrial Accident Commission requesting an increase in the 31 per cent permanent disability rating. The commission denied this petition for lack of jurisdiction on March 15, 1955, and the Supreme Court affirmed the commission’s act on appeal.

(Sprague

v.

Industrial Acc. Com.,

46 Cal.2d 414 [296 P.2d 548].)

The complaint in the instant case was filed on August 3, 1956. At the trial, respondent testified that when appellant had first consulted him, he was aware of the five-year limitation in connection with the petition for permanent disability rating; that because of her statements to him, he had believed that since the original disability rating her condition had grown worse. His explanation for not filing a petition for a change in the rating was that it was his opinion based on the state of the law as it then appeared, that it would be futile to do so until the issue of appellant’s eligibility for further medical treatment had been resolved. He postponed the making of such application in the belief that a decision on the request for further medical benefits was prerequisite thereto; that it was his opinion that the filing of the latter petition would protect his client’s position with regard to the former, despite the five-year limitation.