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District Court of Appeal, First District, Division 2, California.


Civ. 14153.

Decided: February 23, 1950

Hadsell, Sweet, Ingalls & Murman, San Francisco, for appellant. Hallinan, MacInnis & Zamloch, James Martin MacInnis, San Francisco, for respondent.

Defendant, Franklin Hospital, appeals from a judgment against it based upon the death of a three year old child in the course of a tonsillectomy performed in appellant's hospital. Appellant contends that there was a material variance between the complaint and the evidence which amounted to a failure of proof. Section 471, Code Civ.Proc.

The charging part of the complaint was in the following language:


‘That on or about the 5th day of July, 1946, at the said Franklin Hospital in the City and County of San Francisco, State of California, defendants herein, and each of them, undertook for good and valuable consideration, to perform, and they did perform, a tonsillectomy upon the person of the said minor child, Daniel Henry Cavero of the approximate age of three years; that at said time, place and occasion defendants, and each of them, so carelessly, negligently and recklessly performed the said tonsillectomy operation as to then and there cause the said infant child, Daniel Henry Cavero, to suffer and sustain a severe hemorrhage therefrom, and did carelessly, negligently and recklessly allow hemorrhagic material to flow unchecked into the lungs of the said infant child;


‘That as a direct and proximate result of the carelessness, negligence and recklessness of the defendants, and each of them, said infant child was caused to, and did then and there, suffocate and drown in its own blood, and upon said time, place and occasion, said infant child did die upon the operating table.’

The proof was not that the infant died from blood collecting in its lungs as charged but that the infant died from an overdose of ether. Respondent asserts, without any supporting analysis of the pleading, that: ‘The charging paragraph, couched * * * in the most general terms, follows, and, from the utter generality of the language, it can quickly be concluded that there is no variance at all between the pleading and proof in this case.’ The charging part is not general in its language but specific. It alleges negligence in specific language in two respects and two respects only: 1. that defendants so negligently performed the operation as to cause the child to suffer a severe hemorrhage; and 2. that defendants negligently allowed hemorrhagic material to flow into the child's lungs. Neither charge was proved. Instead as above noted, the only evidence produced in the case to support a finding of negligence was that the child died from an overdose of ether.

Appellant moved for a nonsuit at the close of plaintiff's case, and for a directed verdict at the close of the evidence, on the ground that plaintiff had failed to prove the material allegations of his complaint and that there was a material variance between pleading and proof. It thus preserved its record for an appeal, since a motion for nonsuit is a proper way to raise the question of material variance. Brazil v. Pacific American Petroleum Co., 108 Cal.App. 737, 738, 292 P. 275; Von Goerlitz v. Turner, 65 Cal.App.2d 425, 431, 150 P.2d 278; 9 Cal.Jur. 561. Respondent did not ask leave to amend his complaint and elected to stand on his pleading. This brings into play sec. 471, Code Civ.Proc., above cited: ‘Where * * * the allegation of the claim * * * to which the proof is directed, is unproved, not in some particular or particulars only, but in its general scope and meaning, it is not to be deemed a case of variance * * * but a failure of proof.’

It is well settled that where there is such a material variance, amounting to a failure of proof, the evidence will not support the judgment. Lavely v. Nonemaker, 212 Cal. 380, 385, 298 P. 976; Marovich v. Central California T. Co., 191 Cal. 295, 306, 216 P. 595; Kredo v. Phelps, 145 Cal. 526, 528; Munfrey v. Cleary, 75 Cal.App.2d 779, 784, 171 P.2d 750; Wills v. Price, 26 Cal.App.2d 338, 342, 79 P.2d 406; Johnson v. De Waard, 113 Cal.App. 417, 422, 298 P. 92; Gillin v. Hopkins, 28 Cal.App. 579, 153 P. 724; 21 Cal.Jur. 267.

Courts have been liberal in finding a waiver in such cases, but there can be no waiver here since appellant expressly pointed out the fatal variance in the trial court. That the change of plaintiff's theory was prejudicial is apparent from the fact that the anesthetist whose negligence is claimed to have resulted in the lethal dose of ether was not available at the trial.

A res ipsa loquitur instruction was given at the request of other defendants. The case was different from Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687, 162 A.L.R. 1258 and Dierman v. Providence Hospital, 31 Cal.2d 290, 188 P.2d 12. In the Ybarra case the patient suffered a traumatic injury while under anesthetic and in the Dierman case an enesthetic tank exploded. These unusual occurrences were the bases for invoking the res ipsa rule. No cause has been cited that the mere fact of the patient's death while in the operating room justifies the application of the res ipsa doctrine. To so hold would revolutionize the rule that in malpractice cases generally expert testimony must be the basis of any recovery. 9 Cal.Jur. 10 Yr.Supp., 1949 Revision, Physicians and Surgeons, sec. 46, p. 240; Engelking v. Carlson, 13 Cal.2d 216, 221, 88 P.2d 695. The giving of the res ipsa instruction was improper under the facts of this case.

Appellant argues also that the anesthetist although employed generally by appellant became, during the operative procedure, the temporary employee of the surgeons, citing Ybarra v. Spangard, supra, 25 Cal.2d 486, 154 P.2d 687, and Ware v. Culp, 24 Cal.App.2d 22, 74 P.2d 283. The latter case involved a special nurse employed by the patient and is not in point. In the Ybarra case the court said, 25 Cal.2d at page 492, 154 P.2d at page 690: ‘that while the assisting physicians and nurses may be employed by the hospital, or engaged by the patient, they normally become the temporary servants or agents of the surgeon in charge while the operation is in progress * * *.’ The general rule in the cases involving the furnishing of a general employee to assist a third person is that the question whether the employee becomes the temporary employee of such third person is one of fact, and that in order to relieve the general employer of liability under the doctrine of respondeat superior the general employer must resign full control of the employee for the time being. Moss v. Chronicle Pub. Co., 201 Cal. 610, 258 P. 88, 55 A.L.R. 1258. The court properly left this question to the jury under instructions correctly stating the applicable rule of law.

Judgment reversed.

DOOLING, Justice.

NOURSE, P. J., concurs.

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