Norgaard, Kenneth R.

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UND Scholarly Commons (University of North Dakota)

North Dakota Law Review Volume 39 Number 4 Article 9 1963 Limitation of Actions - Ignorance of Cause of Action - Does Ignorance of a Cause of Action Toll the Statute of Limitation Kenneth R. Norgaard Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Norgaard, Kenneth R. (1963) "Limitation of Actions - Ignorance of Cause of Action - Does Ignorance of a Cause of Action Toll the Statute of Limitation," North Dakota Law Review: Vol. 39 : No. 4 , Article 9. Available at: https://commons.und.edu/ndlr/vol39/iss4/9 This Case Comment is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. RECENT CASESLiability, therefore, hinges on whether there is a foreseeablerequirement or whether the producers are responsible for allpossible injuries caused by the use of their product.The instant case dispensed with any requirement offoreseeability in holding that the wholesomeness of a productshould be determined by no other standard than safety. 14Prior cases have indicated that strict liability may beextended this far. 15  The principal case, in holding thattobacco merits the strict liability theory and that liability isexclusive of "human skill and foresight", has significantlyextended liability. The supplier in effect becomes an insureras to defects unknown and undetectable. 6It is submitted that the real value of the decision liesin its warning. Faced with a dilemma, the producers anddistributors of tobacco products have failed to handle theproblem in a way to which the public is entitled. The impactof this decision should force them to seek a solution to theproblem. Failure to respond will bring upon the tobaccoindustry an immediate threat of an increased financial lossvia lawsuits similar to this and a future crowded withregulatory legislation.NEIL A. MCEWENLIMITATION OF ACTIONS - IGNORANCE OF C A U S EOF ACTION - DOES IGNORANCE OF A CAUSE OF ACTIONTOLL THE STATUTE OF LIMITATION? -While p 1 a i n tiffwas hospitalized in 1944, a product manufactured by defendantwas injected into his nasal sinuses for the purpose of makingthem perceptible in X-rays. In 1957 plaintiff learned thatthis substance had caused a cancerous condition in his noseand he brought an action based on negligence and breach ofwarranty. The New York Court of Appeals held, two justices14. Green v. American Tobacco Co., mupra note 13 at 173.15. Pietrus v. Watkins Co., Kupra note 5, at 802 quoting 46 Am. Jur. Sales806 (1943). ". . . the manufacturer as a rule will be charged with noticeof the quality of the article that he himself has made, and cannot excusehimself upon the ground that he did not know its dangerous qualities."16. See Perlmutter v. Beth David Hosp., 308 N.Y. 100, 123 N.E.2d 792.795 (1954) (bad blood); See generally 1 Frumer & Friedmann," PRODUCTSLIABILITY, § 16.03(4) (1961).1963]NORTH DAKOTA LAW REVIEWdissenting, that the action was barred by the statutes oflimitation applicable to actions for negligence and breach ofwarranty. The dissent thought it unreasonable to hold thatplaintiff's cause of action had expired before it was possiblefor him to learn of the wrong. Schwartz v. Heyden NewportChemical Corp., 12 N.Y.2d 212, 188 N.E.2d 142 (1963).The general rule is that mere ignorance of one's rightswill not toll statutes of limitation, but they begin to run fromthe moment the cause of action accrues.1  Some courtsbelieve the occasional hardship resulting from the applicationof this rule is outweighed by the advantage of outlawingstale claims.2Because of the harshness of the general rule, severaljurisdictions have suspended the running of the statute incases of fraudulent concealment, 3  continuing trespass,4infancy5 and insanity.6  One or more of these exceptionshave been codified in many states.7  A few jurisdictionshold that statutes of limitation do not run until actual noticeof the wrongful act.8  This extension of the general ruleis based on two propositions; (1) it is inequitable to preventrelief to an injured party who was without notice of anynegligent act that could cause injury,' and (2) legislaturesdid not intend such consequences to be reconciled with thetraditional purpose of statutes of limitation."°  In support ofthese propositions one court has held statutes of limitationdo not begin to run until knowledge of the damage isacquired.'1. Cristiane v. City of Sarasota, 65 So. 2d 878 (Fla. 1953); RichmondRedev. & Housing Authority v. Laburnum Const. Corp., 195 Va. 827. 80S.E.2d 574 (1954).2. Kennedy v. Johns-Manville Sales Corp., 135 Conn. 176, 62 A.2d 771,773 (1948); Schmidt v. Merchants Despatch Transp. Co., 270 N.Y. 287, 200N.E. 824 (1936).3. Scarborough v. Atlantic C. L. R.R., 178 F.2d 258 (4th Cir. 1949).4. Speth v. City of Madison, 248 Wis. 492, 22 N.'W.2d 501 (1946).5. Hansen v. Lindell, 14 Wash. 643, 192 P.2d 234 (1942).6. In re Goldberg's Estate, 288 Ill. App. 203, 5 N.E.2d 863 (1937).,7. E.g., Cal. Civ. Proc. Code Ann. §§ 328, 338 (1954); Mass. Ann. Lawsc. 260 § 12, 25 (1959); N.D. Cent. Code §§ 28-01-24, 25 (1961).8. Urie v. Thompson, 337 U.S. 163 (1949) where a disease wascaused by dust inhalation over a period of years; City of Miami v. Brooks,70 So. 2d 306 (Fla. 1954) where the statute was tolled until the dis-covery of an old x-ray injury; Sharon v. Kansas City Granite & MonumentCo., 233 Mo. App. 547, 125 S.W.2d 959 (1939) which suspended the statuteuntil the conversion of the stock was discovered.9. City of Miami v. Brooks, supm note 8, at 309.10. Urie v. Thompson, supra note 8, at 170.11. Sylvania Elec. Prods. v. Barker, 228 F.2d 842 (1st Cir. 1955).[Vol. 391963] RECENT CASES 475Generally where the warranty is as to suitability of theproduct sold, the limitation runs from the date of sale.12If the warranty relates to a future event by which its truthcan be ascertained, the statute begins to run as of the timeof that event.13 However, there are a few cases treating afalse warranty as a fraud and holding that the running of thestatute is postponed until the fraud is discovered or mightbe discovered in the exercise of ordinary diligence.'4It is submitted that the general rule is too harsh andshould be liberalized. By postponing the running of thestatute of limitation until notice of the negligent act or thebreach of warranty is acquired, parties who, through no faultof their own are ignorant of their rights, would be accordedmore equitable treatment.KENNETH R. NORGAARD12. Brackett v. Martens, 4 Cal. App. 249, 87 Pac. 410 (1906); LibertyMut. Ins. Co. v. Sheila-Lynn, 185 Misc. 689, 57 N.Y.S2d 707 (1945); ThurstonMotor Line, Inc. v. General Motors Corp., 258 N.C. 323, 128 S.E.2d 413 (1962).13. Aced v. Hobbs-Sesack Plumbing Co., 55 Cal. App. 2d 573. 360 P.2d897 (1961); Inglalls v. Angell, 76 Wash. 692, 137 Pac. 309 (1913) Hereinthere was a warranty that fruit trees would bear a certain type of fruit.The warranty was breached when it was demonstrated the trees did notbear such fruit, and limitations ran from that time.14. Dye v. Farm Mortgage Inv. Co. of Topeka, Kan., 74 F.2d 395 (10thCir. 1934); Anding v. Perkins, 29 Tex. 348 (1867); Cunningham v. FrontierLumber Co., 245 S.W. 270 (Tex. 1922).

Limitation of Actions - Ignorance of Cause of Action - Does Ignorance of a Cause of Action Toll the Statute of Limitation

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Limitation of Actions - Ignorance of Cause of Action - Does Ignorance of a Cause of Action Toll the Statute of Limitation

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