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District Court of Appeal, Second District, Division 1, California.


Civ. 12036

Decided: September 06, 1940

Morris Lavine, of Los Angeles, for appellant. Fred O. Reed and Richard L. Kirtland, both of Los Angeles, for respondent.

This is an appeal by plaintiff from the judgment in favor of defendant Hollywood Hospital entered following the sustaining of a demurrer to the second amended complaint, without leave to amend. The demurrer was general and special. The complaint alleges in substance that plaintiff entered the Hollywood Hospital as a patient, and as such was the subject of an operation on the right kidney. In particular it was alleged “That after plaintiff entered said hospital to be operated upon, as aforesaid, and while plaintiff was so under the care, attendance and control of said defendants, as aforesaid, and through the negligence, recklessness and want of ordinary care on the part of said hospital, conjoined with the negligence, recklessness and want of care on the part of each of said other defendants herein, one of plaintiff's ribs on his left side, to-wit, his second floater rib, was broken; that plaintiff does not know whether his said rib was broken before, or during or after said operation was performed, as aforesaid, but alleges the fact to be that his said rib was not broken before he entered said hospital and came under the care, attendance and control of said defendants, as aforesaid, and that it was broken at some time after he so entered said hospital and while he was so under the care, attendance and control of said defendants, as herein set forth, and through the negligence, recklessness and want of care on the part of said defendants and each of them; that said defendants and each of them wholly omitted and failed to render, and they did not render this plaintiff any care or treatment for said broken rib for a period of about six weeks after said operation, and that none of said defendants became aware of the fact that plaintiff's said rib had been broken, or being aware of said fact, negligently, recklessly and wantonly and designedly failed and refused to render to plaintiff any care or treatment for said broken rib; that by the exercise of ordinary, or any care or skill in the care and attendance upon said plaintiff by said defendants and by the use of any skill on the part of said defendant Laraway, John Doe and Richard Roe, said defendants and each of them would have become aware and would have known that plaintiff's rib had been broken as aforesaid.”

The complaint further alleges “That defendants Dr. Laraway, John Doe and Richard Roe so carelessly, negligently and unskillfully performed said operation that said defendants caused said second floater rib on plaintiff's left side to be broken, and that in causing said rib to be broken as aforesaid, said defendants and each of them failed to use and exercise the ordinary skill of surgeons in this community in performing such operation as said defendants were engaged to perform for plaintiff as herein set forth, or to use any care, or plaintiff alleges that said rib was caused to be broken through the carelessness, negligence and recklessness of each of said defendants in caring for and attending plaintiff prior to said operation or during said operation or after said operation, but that as to which of said times said rib was so caused to be broken, plaintiff is uninformed.” (Italics added.)

Thus it will be seen that plaintiff alleges in substance that defendants so negligently performed the operation that they caused the rib to be broken, or, as the complaint continues, said rib was caused to be broken prior to, during or after said operation, but as to which of said times said rib was caused to be broken, plaintiff is uninformed. In other words, plaintiff's complaint affirmatively shows that plaintiff has no knowledge as to how, when or where his rib was broken. This being true, the allegation that defendants caused it to be broken, as a matter of law, is a conclusion. In addition to its legal characterization such allegation might also properly be regarded as pure speculation.

It is appellant's contention that it is sufficient to plead negligence generally; that it is enough to aver such facts as set forth what the defendant did or omitted to do and aver that his conduct in that behalf was careless and negligent. It is argued by appellant that the complaint, having met this requirement, is sufficient. In Dunn v. Dufficy, 194 Cal. 383, 228 P. 1029, 1030, the rule is declared to be as follows: “Negligence may be charged in general terms; that is, what was done being stated, it is sufficient to say it was negligently done, without stating the particular omission which rendered the act negligent.” Within the application of the above rule, plaintiff's complaint, even in the form of a general allegation, is far short of the requirements of the rule. Indeed, the complaint fails to conform to the specifications noted as essential by appellant, for nowhere in said complaint are averred “such facts as set forth what the defendant did or omitted to do”.

In addition to the foregoing, it is argued, quoting from appellant's brief: “Further it is settled law that where, from the facts alleged, it appears that the doctrine of res ipsa loquitur applies, no allegation of negligence is required.” No citations appear in support of this last-mentioned contention. Nor is it likely that any can be found. Respondent points out, and properly, that “res ipsa loquitur” “is not a principle of pleading, but is peculiarly applicable in the realm of evidence”. In that connection it has been declared that “When the trial court was considering the general demurrer filed by respondent to the second amended complaint, the duty was imposed upon the court of testing the sufficiency of the complaint by the established rules of pleading. Rules of evidence could have no place in such a consideration. Rules of evidence apply to a trial of issues of fact. Respondents' general demurrer necessarily assumed the truth of all material facts alleged in the complaint. A disputable presumption whose effect was simply to relieve appellant from the necessity of proving that respondent was negligent and that such negligence was the proximate cause of appellant's injuries could not extend further and relieve him also of the burden of setting out in his pleading proper allegations which would show a cause of action which he proposed later to substantiate by the production of evidence.” Graybiel v. Consolidated Ass'ns, Ltd., 16 Cal.App.2d 20, 26, 60 P.2d 164, 167. With regard to the phrase res ipsa loquitur, Wigmore observes that “the question has come to be increasingly common whether the fact of the occurrence of an injury (unfortunately now termed ‘accident’, by inveterate misuse) is to be regarded as raising a presumption of culpability on the part of the owner or manager of the apparatus. ‘Res ipsa loquitur’ is the phrase appealed to as symbolizing the argument for such a presumption”. Wigmore on Evidence, vol. IV, sec. 2509, p. 3556. Literally the phrase is interpreted to mean “the thing speaks for itself”; a Latin phrase useful in its place, but in no sense a “doctrine” as that term is commonly understood and applied in the law. Although available in the trial of an action, such a presumption cannot be relied upon to supply the deficiency of a faulty pleading and thus afford a refuge from the perils of a demurrer.

Finally, it is contended by appellant in substance that plaintiff's complaint sufficiently charges negligence on the part of respondent hospital by reason of the alleged failure of respondent to discover plaintiff's broken rib. In that connection it is sufficient to note that respondent, being a corporation, is without authority to practice medicine. That privilege, as pointed out by respondent, is denied to corporations by section 2008 of the Business and Professions Code, Stat.1937, p. 1255. The discovery of a broken rib and the treatment thereof, after the discovery, would appear to be an act of practicing medicine. It should also be noted that no legal duty devolved upon respondent hospital, in the circumstances, to examine plaintiff from time to time for broken bones.

It would serve no purpose to comment on the various decisions cited by the parties hereto in support of their respective contentions, for a sufficient resemblance of the facts in such cases, when compared to the facts in the case at bar, is lacking to the extent that reference thereto as examples is of little, if any, value. Defendant hospital is in no sense an insurer, nor can it be successfully contended that there is anything about a hospital, as such, that is inherently dangerous. The attempt, therefore, of plaintiff, in the circumstances, to base a cause of action upon a lack of knowledge, as the complaint in substance affirmatively shows, finds no support in the law. Although in recent years strict rules of pleading have been somewhat relaxed, nevertheless the burden upon the plaintiff of alleging facts constituting a cause of action remains in full force and effect. It cannot be shifted; nor can issues be joined by resort to speculation and presumptions.

The demurrer properly was sustained.

For the foregoing reasons the judgment appealed from is affirmed.

DORAN, Justice.

We concur: YORK, P.J.; WHITE, J.