concurring.
I concur in the judgment, but write separately because I hold a different view of the application of the discovery rule when a defendant intentionally or fraudulently conceals either the tort or his or her identity in this type of case. The majority writes, in applying the discovery rule, that “[t]he focus is not on when the injured party recognizes whose negligence is responsible for the injury, but, rather, the statute of limitations begins to run on the date on which the party holding the cause of action discovers ... the existence of the injury.” (Emphasis supplied.) Such an application of the discovery rule contorts the very reason that the discovery rule was recognized by this court in Condon v. A. H. Robins Co., 217 Neb. 60, 349 N.W.2d 622 (1984).
We adopted the discovery rule in Condon v. A. H. Robins Co., supra, so that a litigant would not be denied the right to sue before the litigant could determine, even in the exercise of due diligence, whether and whom to sue. Id., citing with approval to Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880 (9th Cir. 1983), and Hansen v. A.H. Robins, Inc., 113 Wis. 2d 550, 335 N.W.2d 578 (1983).
There are many circumstances in which an injured party knows that he or she has been injured, but the injured party is prevented from knowing who is responsible for the injury because of intentional or fraudulent concealment by the wrongdoer. What good is it to a mugging victim or a victim of a hit- and-run automobile that he or she “knows of the existence of the injury” if the identity of the mugger or runaway driver is determined years after the statute of limitations has run? The law should not reward a wrongdoer who fraudulently or actively conceals either the tort or the wrongdoer’s identity. See Muller v. Thaut, 230 Neb. 244, 430 N.W.2d 884 (1988).
I submit that the better rule is that the statute of limitations should not commence to run until the injured party, in the absence of wrongdoing on the part of the defendant concealing either the tort or the wrongdoer’s identity, discovers or, in the exercise of reasonable diligence, should have discovered the existence of the injury. See, Cart v. Marcum, 188 W. Va. 241, 423 S.E.2d 644 (1992); Spitler v. Dean, 148 Wis. 2d 630, 436 N.W.2d 308 (1989), citing with approval to Hansen v. A.H. *29Robins, Inc., supra. Justice is not done when an injured person loses the right to sue before that injured person reasonably discovers if he or she was injured or whom to sue.
However, even with the above rule in mind, I concur in the judgment, because this court is obligated to dispose of cases on the basis of the theory presented by the pleadings on which the case was tried. See Ashland State Bank v. Elkhorn Racquetball, Inc., 246 Neb. 411, 520 N.W.2d 189 (1994). Teater alleged in her petition that she qualifies under the tolling provision of Neb. Rev. Stat. § 25-213 (Reissue 1995) because she suffered from a mental disorder that prevented her from understanding her right to maintain a legal action. The district court’s finding that Teater did not suffer from such a mental disorder was not clearly wrong.
Teater did not set forth in her petition a claim that DSS fraudulently or intentionally concealed anything from her that would toll the statute of limitations, nor did Teater request leave to amend her pleadings at any time during the trial. Therefore, regardless of how the discovery rule is applied, the theory that Teater pled and tried did not establish an excuse that would toll the statute of limitations in the instant case.
Connolly, J., joins in this concurrence.