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District Court of Appeal, Second District, Division 3, California.


Civ. No. 14179.

Decided: March 24, 1944

Marion P. Betty and Wycoff Westover, both of Los Angeles, for appellant. Parker & Stanbury, of Los Angeles, for respondents.

A judgment of nonsuit was entered in favor of each defendant, and rightly, we have concluded. We are inclined to agree with the plaintiff that he proved facts from which it could be said that someone caused an injury to plaintiff, but we agree with each defendant that the evidence was quite insufficient to enable the trial court to point the finger of blame at him.

Plaintiff's case may be fairly sketched in a few words, for other than that touching upon the extent of plaintiff's injury there was little evidence. Suffering from an abdominal ache, the plaintiff consulted the defendant Dr. Tilley, who advised him that he should have his appendix removed, and entered him in the hospital owned and managed by the defendant, Dr. Swift. Here a nurse, unidentified, gave him a hypodermic injection and readied him for the operation. He was wheeled into the operating room by the defendant Gisler, one of Dr. Swift's nurses. Dr. Reser, a defendant and employee of Dr. Swift, helped adjust the plaintiff on the operating table and administered the anesthetic. The defendant Dr. Spangard performed the operation at the request of Dr. Tilley. When the plaintiff awakened some few hours after the operation he was in bed in his hospital room, attended by the special nurse, defendant Thomson, and another nurse, not a defendant. Up to the time that the plaintiff entered the hospital he had suffered no injury to his upper arm. When he regained consciousness after the operation, he had a pain in his shoulder, due to the fact, according to some expert testimony, that a nerve had been injured by the application of some external pressure or strain.

Plaintiff relies upon the doctrine of res ipsa loquitur to make out his case. But if the circumstances do tell their own tale, the most that they relate is that someone did something negligently to the plaintiff. If all those who could have pressed upon him during the period of his unawareness were the employees of any one defendant, that defendant might be held responsible for plaintiff's injuries, but even that was not established. Dr. Swift does not appear in the role of a superior responsible for the acts of Dr. Spangard, nor do Dr. Tilley or Dr. Spangard appear to be responsible for the possible negligence of any of the other actors. Who, if anyone, stood as an employer, responsible for the possible negligence of nurse Thomson, is not made to appear. Granting that something happened to the plaintiff between the sunset and the sunrise of his consciousness, who caused it, is veiled in the darkness of an utter lack of evidence. None of the defendants were called to testify; no one revealed whose hands moved the plaintiff from the operating table to his bed. In the premises, a judgment against any one defendant would have lacked evidentiary support. As to each defendant a nonsuit was required.

The judgment of nonsuit is affirmed.

BISHOP, Justice pro tem.

DESMOND, P. J., and PARKER WOOD, J., concur.

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