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


Civ. 13279.

Decided: April 25, 1947

Gladstein, Andersen, Resner, Sawyer & Edises, by G. R. Andersen, all of San Francisco, for appellant. Johnson & Ricksen, of Oakland, for respondent Libby, M. D. Hoge, Pelton & Gunther, of San Francisco, for respondents Providence Hospital and Treadway.

This action was brought by Mabel Dierman against Dr. Robert Green Libby, a duly licensed physician and surgeon, the Providence Hospital, located in Oakland, and Mrs. Vera Jones Treadway, an anesthetist employed by the hospital, for personal injuries suffered in an operation and alleged to have been caused by the negligence of the defendants. The cause was tried before a jury and a verdict rendered in favor of all defendants. From the judgment entered in conformity with the verdict the plaintiff appeals.

The facts are as follows: On July 25, 1944, the plaintiff called at the office of Dr. Libby and was examined by him. She testified that she visited him to have a wart removed from her nose. The doctor testified that she complained to him of dizziness, headaches, hot flashes and of pains in her legs; that he concluded from his examination and diagnosis that the cause of her complaints was that plaintiff was going through the menopause; that he gave her a hormone injection and prescribed various medicines to be taken orally for this condition; that he also discovered that she had enlarged and infected tonsils; that he recommended their removal, and arrangements were made for the operation to be performed at the Providence Hospital on August 15, 1944.

On August 14, 1944, Dr. Libby again saw plaintiff and gave her the routine preliminary examination to determine if she were fit for surgery. He found her in good physical condition. On August 15, 1944, plaintiff was admitted to the hospital and was thereafter taken to the operating room where the accident resulting in her injuries occurred.

Dr. Libby testified that he planned to remove the wart first, and that for this part of the operation the patient was anesthetized with nitrous oxide and oxygen, admittedly a non-combustible, non-explosive and non-inflammable gas. He then intended to remove the tonsils after anesthetizing the patient with ether, a highly inflammable and explosive gas. Admittedly, containers of both gases were in the operating room.

The doctor testified that the patient was completely anesthetized with nitrous oxide and oxygen; that he then removed the wart with an electric needle which gets pretty hot; that after he had finished removing the wart and was cauterizing the wound with the electric needle there was a ‘flash’ and a ‘pop’ about six inches above the plaintiff's face; that as a result of this accident the plaintiff suffered contusions to her left cheek and left eye, and bled profusely from the nose and mouth. Because of these hemorrhages the doctor did not remove the tonsils but immediately called an eye specialist to examine the injured eye.

The doctor also testified that at the time of the ‘flash’ and ‘pop’ the nitrous oxide and oxygen had been turned off and that the ether had not yet been turned on; that to give ether would require the switching of the apparatus; that the apparatus was never switched. The doctor described in detail what he was doing before and at the time of the accident. It is a permissible inference from that evidence, if believed, that he exercised due care.

The anesthetist, Mrs. Vern Jones Treadway, was not available at the time of trial and her deposition was read to the jury. She testified that no ether was used at all in the operation, that only nitrous oxide and oxygen was used; that at the time of the ‘flash’ and ‘pop’ no anesthetic at all was being used. On the official anesthetic record of the hospital, filled out by this witness, under the heading ‘anesthetic used’ appears the symbols for both nitrous oxide and ether, thus indicating that ether was actually administered. However, Mrs. Treadway testified that this report had been filled in by her before the operation started from information furnished her by the hospital office; that she knew both nitrous oxide and ether were to be used and so stated on the form; that the hospital office gets its information from the operating doctor. If her testimony is to be believed it is a permissible inference that she used due care.

The nurse in charge of the ten surgical rooms at the hospital who was not present in the operating room at the time of the accident, testified that the breathing hose that leads from the gas receptacle to the plaintiff's face was washed with soap and water just prior to the operation, and that this was the proper and accepted manner of preparing the hose for use in an operation. This witness contradicted herself several times as to whether she actually saw the hose being washed, but finally testified that she saw it being washed in the approved fashion.

Neither the doctor nor Mrs. Treadway could account, or attempted to account, for the ‘flash’ and the ‘pop’ that caused the injuries. In order to try and supply this information, a Dr. Cardwell, who was director of the anesthetic department of the defendant hospital at the time of trial, but who had not been connected with any of the defendants at the time of the accident, was called as a witness by defendant Treadway and the hospital. He qualified as an expert on anesthesia, and in response to a hypothetical question stating most of the facts surrounding the accident, and requesting his opinion as the cause of the ‘flash’ and the ‘pop,’ stated: ‘I think that the strongest possibility—* * * From the information, I suspect—* * * My opinion would be, one probable likelihood would be, some contaminating substance in one of the tanks, some foreign substance.’ He admitted, on cross-examination, that a switch from one anesthetic to another can be made without an interval of time between, and that it was possible for a chemical laboratory to test nitrous oxide to see if it is contaminated. Neither the hospital nor the doctor nor the nurse had had such tests made of the nitrous oxide remaining after the operation.

The chief engineer of the hospital testified that he was in charge of purchasing anesthetics for the hospital in August, 1944; that the hospital did not manufacture its own anesthetics; that all anesthetics used by the hospital, including the nitrous oxide, were purchased from a named independent contractor.

There is no doubt that plaintiff received substantial injuries in the accident. Her face was swollen and black and blue and the eyelids of her left eye were so badly swollen that the eye was swollen shut. She bled from the nose and mouth for a considerable period of time. She was hospitalized for fifteen days. As to whether these injuries caused any permanent condition the evidence was highly conflicting. Plaintiff testified that prior to August 15, 1944, she was in excellent health, but that since the accident she was dizzy, unable to work, her eyes were affected and she could not read without discomfort, suffered from headaches, could not go on the street alone, etc. On cross-examination she admitted having been in an automobile accident in 1937 in which she broke her leg, and in the resulting civil action she testified as to severe head injuries. She denied going to Dr. Libby for any ailment other than the tonsils and wart. She denied then having the symptoms testified to by Dr. Libby. The doctor, in addition to testifying that her condition is now about the same as when she first visited him on July 25, 1944, testified that her injuries caused by the accident were completely cleared up by September 15, 1944. He testified that most of her present complaints were caused by the menopause and by the infected tonsils. There was considerable other medical testimony to the effect that the plaintiff was suffering from cervical arthritis not caused by the accident that had been lighted up by the infected tonsils.

The major contention of plaintiff is that on the evidence the trial court should have granted her motion for a directed verdict. This contention is based on the argument that the doctrine of res ipsa loquitur applies to this case, and that under that doctrine, the burden cast on the defendants was to explain the cause of the accident, and, having failed to offer a satisfactory explanation, as a matter of law, the trial court should have directed a verdict for plaintiff. Plaintiff argues that it was not sufficient to take the case to the jury for defendants to testify as to what they did, even though from such evidence an inference that such defendants exercised due care is permissible, but that, in addition, defendants must offer evidence as to how the accident occurred.

The case was tried on the theory that the doctrine of res ipsa loquitur was applicable and the jury was so instructed. There can be no doubt at all that the doctrine is applicable to such a case. Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687, 162 A.L.R. 1258, and cases cited therein. One of the counsel for defendants argues that the doctrine has no application to cases involving surgical operations, but that contention was completely set at rest by the holding and reasoning of the Ybarra case. A clearer illustration of a factual situation giving rise to the doctrine can hardly be imagined than the facts of the instant case.

In support of her contention that the explanation here offered was insufficient as a matter of law, plaintiff cites such cases as Hackley v. Southern Pacific Co., 6 Cal.App.2d 611, 45 P.2d 447; John v. B. B. McGinnis Co., Inc., 37 Cal.App.2d 176, 99 P.2d 323; Judson v. Giant Powder Co., 107 Cal. 549, 40 P. 1020, 29 L.R.A. 718, 48 Am.St.Rep. 146. These cases all contain general language to the effect that as a result of the doctrine the burden is thrown on the defendant to explain ‘how’ the injury occurred, but this language was used in cases (like the three above cited) where the higher court was affirming a judgment for plaintiff, or (like some of the other cases cited) where the higher court was reversing a judgment of nonsuit. In the present case the jury was instructed on the doctrine and then found in favor of defendants. To reverse that determination it must be held that, as a matter of law, there is no evidence or no reasonable inference from the evidence that defendants were not negligent.

The precise point now under consideration was considered by the appellate court in Hinds v. Wheadon, 67 Cal.App.2d 456, 154 P.2d 720 (hearing denied without dissenting vote by Supreme Court). There, as in the instant case, the jury was instructed that the doctrine of res ipsa loquitur was applicable. There, as here, the jury brought in a verdict adverse to the plaintiff. There, as here, on appeal, it was contended that evidence that the defendants used due care was not sufficient to rebut the inference of negligence raised by the doctrine. There, as here, it was contended that defendants were under a duty to explain the cause of the accident. In disposing of this point the court stated 67 Cal.App.2d at page 464, 154 P.2d at page 724: ‘The explanation which the defendant is required to make is an explanation of his conduct and, to be complete, it must be as broad as the inference. It is for the jury to say whether the inference has been successfully met [citing cases], although if the defendant fails to produce substantial evidence of the use of due care, as where it appears that precautions that should have been taken were not taken, the defense will be held insufficient as a matter of law. [Citing case.] All that he need do in any case is to produce evidence which equals in evidentiary weight the inference which the doctrine creates in favor of plaintiff. [Citing case.]’

At page 465 of 67 Cal.App.2d at page 724 of 154 P.2d, the following appears: ‘Since the question of negligence is one of fact, the conclusion of the jury that a given act or omission did or did not constitute negligence may not be disturbed on appeal, if the evidence upon the issue is such as to allow a difference of opinion among reasonable minds. The res ipsa loquitur doctrine does not abrogate this familiar rule. It does not relieve a plaintiff who charges negligence from the duty of proving it by a prepondernce of the evidence. It is a rule of evidence and not of liability and it does not impose upon one charged with negligence the duty of exercising a higher degree of care than would be required of him in a case where the doctrine was inapplicable. There is no rule of law applicable to all cases of simple negligence which requires a defendant to prove the exact cause of an accident in order to meet an inference that it was caused by his negligence. Undoubtedly there are cases where the defendant would have to show the immediate cause of the accident and that it was not due to his negligence, as where it must necessarily have resulted from his own act or omission. This is clearly not such a case.’

This reasoning is applicable to the present case, and is in accord with the overwhelming weight of authority. Much has been written on the subject of the procedural effect of the doctrine. See Carpenter, ‘The Doctrine of Res Ipsa Loquitur,’ 1 Univ. of Chicago Law Rev. p. 519; Prosser, ‘The Procedural Effect of Res Ipsa Loquitur,’ 20 Minn.Law Rev. 241; Carpenter, ‘The Doctrine of Res Ipsa Loquitur in California,’ 10 Sou. Cal. Law Rev. p. 166; Shain, ‘Res Ipsa Loquitur,’ 17 Sou. Cal. Law Rev. p. 187; Heckel and Harper, ‘Effect of the Doctrine of Res Ipsa Loquitur,’ 22 Ill.Law Rev. p. 724; Shain on Res Ipsa Loquitur; Prosser on Torts, p. 302, et seq. An examination of these articles, and of the cases decided by the courts, demonstrates that procedurally there has developed three different views as to the nature of the benefit that accrues to the plaintiff under a set of facts bringing him within the doctrine, and of the nature of the burden thrown upon the defendant by operation of the doctrine. The first of these views is that the doctrine creates an inference of negligence which is alone sufficient to get the plaintiff past the danger of a nonsuit, and to permit him to get his case to the trier of the fact. Under this view the burden of proof still lies with the plaintiff and defendant may or may not choose to resist the inference by rebutting evidence. Even if defendant offers no rebutting evidence, it is still for the jury to determine whether the plaintiff—having as he does the inference of negligence in his favor—has made out his case by a preponderance of evidence. It is for the jury to determine whether it will indulge in the inference.

The second view is that the application of the doctrine creates a presumption of negligence against the defendant, and thus casts upon him the burden of ‘going forward’ with evidence to rebut the presumption that he had failed to exercise due care. If defendant fails to offer rebutting evidence it is probably the law that a verdict should be directed for plaintiff based upon the presumption.

The third view concerning the procedural effect of the doctrine is that when plaintiff makes out his res ipsa case, there is then a shifting of the burden of proof to the defendant—and it becomes his duty to negate the implication of negligence by a preponderance of evidence. In his text on the doctrine Shain proposes that the true rule in the res ipsa cases should be that the burden of proof shifts to the defendant, and that he should be required to rebut the inference of negligence by a preponderance of evidence. The vehemence with which Shain advances his position indicates that he is arguing for a change of the generally accepted law, and that the ‘shifting of the burden of proof’ view is not now generally accepted. Professor Prosser in his text on torts states (p. 303) that: ‘The majority of American courts regard res ipsa loquitur as nothing more than one form of circumstantial evidence * * * the inference of negligence to be drawn from the circumstances is left to the jury. They are not compelled to find it.’

While there is some doubt in the California cases as to whether or not the defendant must put on some evidence to rebut the inference or presumption of negligence, and whether the finder of fact can find against the inference if no rebutting evidence is offered, there can be no doubt at all that the California courts have not adopted the so-called shifting of the burden of proof view in res ipsa cases. See cases collected 8 Cal.Jur. (10 Yr.Supp.) pp. 388, 389, § 132. The California cases are quite uniform in holding that the doctrine creates an ‘inference’ or ‘presumption’ of negligence that has the legal effect of establishing a ‘prima facie’ case. In Druzanich v. Criley, 19 Cal.2d 439, 444, 122 P.2d 53, 56, the court said that ‘it is ordinarily a question of fact whether the inference has been dispelled.’ Under this theory the burden of proof is not on defendant and the evidence of defendant need not preponderate over the evidence created by the inference.

In order for plaintiff to be entitled to a directed verdict in the present case it would be necessary to adopt the theory that the legal effect of the res ipsa case produced by plaintiff was to shift to defendant the burden of proof, which would include the necessity of offering an explanation of the accident. We agree with plaintiff that the so-called explanation of the expert Dr. Cardwell that ‘I think that the strongest possibility—* * * From the information, I suspect—* * * My opinion would be, one probable likelihood would be, some contaminating substance in one of the tanks, some foreign substance,’ as a matter of law does not constitute a sufficient explanation if the burden to establish the cause of the accident was on defendants. But that is not the rule in California.

In the present case the defendants did go forward with the evidence by testimony of what they actually did, and from that testimony it is a permissible inference that they exercised due care. Inasmuch as in California the doctrine of res ipsa merely establishes a prima facie case, it would seem to follow inevitably that when evidence of due care has been offered by defendants it becomes a jury question as to whether the inference of negligence created by the doctrine has been dispelled.

There are several cases in addition to Hinds v. Wheadon, supra, where this point has been directly discussed. In Druzanich v. Criley, 19 Cal.2d 438, 444, 122 P.2d 53, 56, the court said: ‘The application of the doctrine does not give a plaintiff an absolute right to a judgment in every case. [Citing cases.] It does not shift the burden of proof, and when the defendant produces evidence to rebut the inference of negligence, it is ordinarily a question of fact whether the inference has been dispelled. [Citing cases.]’

In denying a petition for hearing in the case of Bourguignon v. Peninsular Ry. Co., 40 Cal.App. 689, at page 694, 181 P. 669, 671, the Supreme Court stated: ‘The true rule is that, where the accident is of such a character that it speaks for itself, as it did in this case, and raised a presumption of negligence, the defendant will not be held blameless, except upon a showing either (1) of a satisfactory explanation of the accident; that is, an affirmative showing of a definite cause for the accident in which cause no element of negligence on the part of the defendant inheres, or (2) of such care in all possible respects as necessarily to lead to the conclusion that the accident could not have happened from want of care, but must have been due to some unpreventable cause, although the exact cause is unknown.’

In Manuel v. Pacific Gas & Elec. Co., 134 Cal.App. 512, at page 517, 25 P.2d 509, 511, the court stated: ‘* * * the burden of proof remains at all times upon the plaintiff * * * the doctrine * * * merely establishes a prima facie case of negligence which the defendant is bound to meet, and all that the defendant is required to do is to produce evidence sufficient to off-set the effect of plaintiff's prima facie case. As to the law, we believe this to be a case for the application of the rule, and as to the facts the jury were apparently not convinced by the theory of the break of appellant, and whether the break was due to the impace of the rifle bullet or to kinks in the line put in when the cable was strung or to a blow from an unknown tool, or to some othr unexplained cause, was for them to determine.’

In Shearman and Redfield on Negligence, Vol. 1, § 56, p. 154, the following is said: ‘Rebuttal of the presumption of negligence raised under the rule of res ipsa loquitur has been said to throw upon defendant the burden of presenting an explanation of the accident which is consistent with freedom from negligence. The term ‘explanation’ as used in the cases properly connotes reconciliation of the event with the absence of negligence on the part of defendant. The term does not necessarily involve making plain how the accident happened.' Citing Klein v. Fraser, 169 App.Div. 812, 155 N.Y.S. 848; Carroll v. Boston Elevated Ry. Co., 200 Mass. 527, 86 N.E. 793.

The Klein case cited above is directly analogous. There the plaintiff was injured while a passenger in an elevator which failed to stop at the ground floor and crashed into the hampers below. The trial court correctly held that the doctrine of res ipsa was applicable, but also instructed that the burden was on defendant to explain the accident. The judgment for plaintiff was reversed, the court holding, 169 App.Div. at page 813, 155 N.Y.S. at page 849: ‘The rule of res ipsa loquitur upon which plaintiff relied to establish defendant's negligence, is merely a rule of evidence, which may be rebutted by a showing by defendant that she in fact had not been negligent. The court in the case at bar imposed a much more onerous burden upon the defendant by charging in plain terms, and more than once, that the fall of the car cast upon defendant the burden of explaining how it fell. What was cast upon the defendant by the fact of the accident was not to prove just how the accident happened, but that she had exercised due care to guard against the happening of such an accident. [Citing cases.]’ For other recent cases from other states discussing the problem see MacDonald v. Pennsylvania R. Co., 348 Pa. 558, 36 A.2d 492; Davis v. Teche Lines, 200 La. 1, 7 So.2d 365; see, also, Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 150 P.2d 436; Ales v. Ryan, 8 Cal.2d 82, 64 P.2d 409; cases collected 8 Cal.Jur. (10 Yr.Supp.) p. 395, § 140.

The present case is not one where the only possible explanation of the accident was that defendants were negligent. That may be the most reasonable possibility, but, obviously, there are other possibilities as well. Plaintiff makes much of the fact that defendants did not have an analysis made of the nitrous oxide remaining in the container to see if it was contaminated. That would certainly have been a reasonable step to have taken and undoubtedly plaintiff so argued to the jury. But the jury found against plaintiff. Inasmuch as the law has been established in this state by the Supreme Court that defendants are under no absolute duty of explaining the cause of the accident we cannot hold, as a matter of law, that their failure to ascertain the cause by such an analysis entitles the plaintiff to a directed verdict. If there is to be a change in the nature of the burden cast on defendants by the operation of the res ipsa rule it must be accomplished by the Supreme Court and not by an intermediate court.

From what has been said it follows that plaintiff was not entitled to a directed verdict. The weight to be given the inference of negligence and the weight of the rebutting testimony were questions for the jury. The jury having impliedly found that the injury was not traceable to any lack of due care on the part of defendants, and that finding being based on the evidence that they exercised due care, this court has no power to disturb the finding.

The plaintiff also contends that the trial court erred in giving certain instructions, contending that such instructions were improper in a res ipsa loquitur case. The Court first gave some general instructions and then directly and at length and correctly, at the request of plaintiff, instructed on the doctrine of res ipsa loquitur. Three such rather lengthy instructions were given. Then the Court gave some instructions requested by defendants. It is the theory of plaintiff that although the jury was correctly instructed on the doctrine of res ipsa loquitur these other instructions nullified the effect of these instructions. Those portions of the instructions of which special complaint is made are as follows:

‘I instruct you, ladies and gentlemen, that should you be presented with the situation after having heard all of the evidence that you are unable to determine whether the defendants or any one of them was or were guilty of negligence, and should you further find that the proof offered in the case does not enable you to determine by the preponderance of the whole evidence whether or not the said defendants or any one or more of them was or were guilty of negligence, then I instruct you that your verdict will be in favor of such one one or more of the defendants to which there has been such failure of proof.’

‘Should you find from the evidence in this action that an accident did occur, but should you further find that the said accident may have happened in several different ways and you are unable to determine from the evidence whether the said accident was brought about by any carelessness on the part of any one or more of the defendants, then I instruct you that your verdict will be against the plaintiff Mabel Dierman and in favor of the defendant against whom the proof is insufficient to show how the accident happened.’

‘You are hereby instructed that a mere guess that there may have been negligence on the part of the defendants or either of them is not sufficient to justify a verdict against such defendants or either of them. To justify a verdict in favor of the plaintiff since, the burden of proving the carelessness and negligence alleged in the complaint is upon the plaintiff, a mere conjecture or mere guess that there may have been negligence is a conclusion not based upon actual proof and, therefore, in a case of this nature nd cannot be the basis for rendering a verdict against a defendant.’

Plaintiff urges that the above three instructions, and certain others along the same line, must have successfully erased from the minds of the jury the correct intructions given on the res ipsa doctrine. Plaintiff contends that the constant and repeated reference to plaintiff's burden of proof without reference to the corresponding burden upon defendants created by the doctrine must have had this effect. It is also urged that it was error to refer repeatedly to the fact that the negligence of defendants must be definitely proved without also explaining to the jury that the inference created by the doctrine is in itself evidence of negligence.

A trial court cannot state all of the law in each instruction. The court here adopted a logical approach. After its general instructions it immediately instructed on the legal effect of the res ipsa doctrine. Then it instructed on the burden of proof. Under the rule announced in the cases theretofore cited the doctrine (1) raises an inference of negligence, which inference is itself evidence and may not be disregarded; (2) the doctrine does not change the rule as to the burden of proof and the burden rests on the plaintiff to prove his case by a preponderance of the evidence; (3) the doctrine casts on the defendant the burden to produce evidence which equals in evidentiary weight the inference created by the doctrine; and (4) where the defendant produces evidence of his due care it is for the jury to say whether the inference has been met. The instructions here involved, when read as a whole, correctly state the law. The last instruction above quoted is quite similar to one involved in Hinds v. Wheadon, 67 Cal.App.2d 456, 154 P.2d 720, where it was held to be consistent with an instruction correctly setting forth the res ipsa loquitur doctrine. If the plaintiff desired further explanatory instructions upon the subject of the weight of the inference, or the burden of proof, it was her duty to request them. This she did not do and may now not complain that further instructions on this subject were not given. Armstrong v. Pacific Greyhound Lines, 74 Cal.App.2d 367, 168 P.2d 457; Crooks v. White, 107 Cal.App. 304, 290 P. 497.

The judgment appealed from is affirmed.

PETERS, Presiding Justice.

WARD and BRAY, JJ., concur.

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