а judgment in favor of defendants after trial before a jury predicated upon the granting of defendants’ motiоns for nonsuits on the grounds that:
(1) Plaintiff’s cause of action was barred by the statute of limitations (subd. 3, § 340, Code Civ. Proc.), and
(2) Thе evidence failed to disclose negligence on the part of defendants or either of them,
plаintiff appeals. The action is one for damages resulting from the alleged negligence of defendants in failing to remove from plaintiff’s ear all of the plaster of Paris used in making a cast thereof.
Viewing the evidence in the light most favorable to plaintiff (appellant), as we must in reviewing an appeal from a judgment predicated upon the granting of a motion for a nonsuit, the essential facts are:
On or about Mаrch 22, 1939, plaintiff agreed to purchase from defendant Sonotone Corporation a hearing deviсe known as an individually moulded “eartip.” March 22, 1939, defendant Brown, an agent of his codefendant Sonotone Corporation, arranged with defendant Compton, a dentist, to make a plaster impression of plаintiff’s ear, which impression was necessary to properly fit plaintiff with the “eartip” he had agreed to рurchase. On the date just mentioned defendant Compton placed plaster of Paris in plaintiff’s ear fоr the purpose of making a plaster impression thereof. This was accomplished by placing cоtton pellets in plaintiff’s ear and thereafter pouring plaster into it. After about five minutes defendant Compton removed the cast from plaintiff’s ear. The making of the cast took place in the presence of defendant Brown, to whom it was handed upon removal from plaintiff’s ear. Defendant Brown had been instruсted by his codefen *160 dant the Sonotone Corporation in the method of taking plaster impressions of аn ear.
On the way home from defendant Compton’s office plaintiff complained to defendant Brown thаt his ear hurt, but was informed such pain was to be expected. Again in October of 1939 plaintiff complained tо defendant Brown that his ear hurt, but was informed that he would get used to the “eartip.” February 5, 1940, due to the pain in his ear, plaintiff consulted Dr. Nillson who, upon examination, told him there was a hard substance like stone in his ear, which wаs subsequently removed and found to be bits of plaster and cotton. The first time plaintiff learned there was a fоreign substance in his ear was on February 5, 1940, when Dr. Nillson so informed him.
Dr. Nillson testified that there is an instrument with a light which enables аnyone to look into the ear as far as the drum to ascertain if a foreign substance is present. It is conceded that defendant Compton did not use any instrument in examining plaintiff’s ear after making the plaster cаst to ascertain if he had removed all of the plaster and cotton which he had placed therеin. The present action was commenced May 10, 1940.
Plaintiff relies for reversal of the judgment on two propositions, which will be stated and answered hereunder seriatim.
First: In an action to recover damages for negligently failing to remove from a human body a foreign substance which defendant has placed there, the stаtute of limitations commences to run from the date the plaintiff discovered, or from the use of reasonable diligence should have discovered, that the foreign substance had not been removed, and the stаtute of limitations does not commence to run from the date the substance is placed in the human body.
This proposition is tenable. It is the general rule that in tort actions the statute of limitations commences tо run from the date of the act causing the injury.
(Petrucci
v.
Heidenreich,
That if a foreign substance is negligently .left in the human body by a defendant, the statute of limitations does not commence to run until the plaintiff has discovered the fact that a foreign substance has been left in his body or through the use of reasonable diligence should have discovered it. (Ehlen v. Burrows,51 Cal.App.2d 141 , 144, 145 [124 P.2d 82 ].) *161 Applying the foregoing rule to the facts оf the instant case, it appears that plaintiff did not discover, nor through the use of reasonable diligence should he have discovered, that the plaster of Paris had been left in his ear by defendant Compton until Fеbruary 5, 1940; and, since the present action was commenced May 10, 1940, it was filed within a year of the date plаintiff learned that he had a cause of action against defendants and was thus not barred by the statute of limitations.
Second: There was substantial evidence, assuming the above statement of facts to be true, to suрport a judgment m favor of plaintiff.
This proposition is tenable. Assuming for the purpose of this appeal only that the above statement of facts is true, we are of the opinion that the trial jury might reasonably hаve believed that defendant Compton and defendant Brown were agents of defendant Sonotone Corporation and that defendant Compton and defendant Brown were negligent in not having used an apprоpriate instrument to examine plaintiff’s ear after the plaster cast was made to be certain that none of the plaster or cotton used remained in his ear, and likewise that plaintiff was not dilatory in discovering that some of the plaster and cotton had been negligently left in his ear.
For the foregoing reasons the judgment is reversed.
Moore, P. J., and Wood (W. J.), J., concurred.