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FITZPATRICK et al. v. FIDELITY & CASUALTY CO. OF NEW YORK et al.*
This appeal is from a judgment sustaining, without leave to amend, demurrers, general and special, to the second amended complaint.
The said complaint alleges that on or about October 9, 1931, the deceased, Henry O. Fitzpatrick, while in the employment of H. Swarz & Co. as a plumber, sustained an injury to his back; that at the time of said injury the said H. Swarz & Co. carried compensation insurance with the defendant the Fidelity & Casualty Company of New York, an insurance company licensed to do business in the state of California; that the injury occurred at Napa, Cal., and that said deceased was treated for said injury by his personal physician, H. V. Baker of Napa, Cal., who applied to his back a cast, immobilizing the affected vertebræ of his spine which had been injured; that the said insurance carrier, upon receiving notice of said injury, insisted that deceased should come to San Francisco to be inspected by its investigators; that deceased protested he was unable to travel such a distance in his condition but that said defendant insisted he come to San Francisco, otherwise no compensation would be paid; that on or about December 6, 1931, said deceased, pursuant to the said compulsion of said defendant, came to San Francisco and was directed by it to go to the office of its investigators, George W. Goodale, Inc., and F. Justin McCarthy, Inc., corporations, which were engaged on behalf of the said defendant to examine, interrogate, and investigate injured men seeking workmen's compensation; that at all times herein mentioned the said corporations and one T. J. Nolan were the agents, servants, and employees of said defendant and acting within the scope and course of their said employment.
The complaint further alleges that at said office, the said corporations and said T. J. Nolan, being in the employment of the said defendant and acting within the scope and course of their employment, demanded of deceased that he submit to the removal of said cast, and when deceased protested against its removal, stating that without it he would suffer great pain, the said T. J. Nolan informed him that unless deceased consented to the removal of said cast no compensation would be paid him; that deceased under said compulsion consented to the removal of the said cast; that deceased was allowed to remain without any cast or support on his back for a long time, but that a few days thereafter the said Nolan visited deceased and applied a cast to his spine, but instead of applying the cast so as to immobilize the affected vertebræ of the spine he negligently and carelessly applied the cast to a part of the spine which was not affected, and thereby left the affected area without any support, and that solely as a result thereof the said deceased died on December 15, 1931; that the death of said deceased was caused wholly and solely through the negligence, fault, and want of care of defendants and each of them as heretofore alleged.
It is apparent that no cause of action is alleged against F. Justin McCarthy, Inc. Its demurrer was therefore properly sustained, but with reference to the demurrers of the Fidelity & Casualty Company and T. J. Nolan the situation is not so clear.
The amended complaint alleges that at all times therein the said Nolan was the agent, servant, and employee of the Fidelity & Casualty Company, and was acting within the scope of his said employment; that the cast was removed from the back of deceased, by whom is not stated; but that several days thereafter the said Nolan sought to replace the same and that by reason of his negligence and carelessness in placing the said cast upon decedent's back the decedent died. In other words, that the death of deceased was caused by the want of care and by the negligence of said Nolan in placing said cast upon that part of the back which was not affected, and leaving the affected part without any support, the result of which caused the death of said deceased. This complaint also alleges that the said Nolan was then the agent of the Fidelity & Casualty Company and acting within the scope of his employment.
It is sufficient to allege that that which plaintiff claims was done by the defendant was done negligently by him, and that it appears from the allegations of the complaint that the negligence caused or contributed to the death of decedent. Hughes v. Warman Steel Casting Co., 174 Cal. 556, 163 P. 885; Champagne v. A. Hamburger & Sons, 169 Cal. 683, 147 P. 954.
Respondents maintain that certain demurrers and a motion to strike were sustained against the first amended complaint, and that this court should give consideration to those matters. However, these things are not contained in this record on appeal, but are merely set forth in the appendix to respondents' brief. It is elementary that a second amended complaint supersedes all previous complaints filed (W. H. Marston Co. v. Kochritz, 80 Cal. App. 352, 361, 251 P. 959), and its sufficiency must be determined without reference to the original. Butler v. Wyman, 128 Cal. App. 736, 18 P.(2d) 354; Russell v. Ramm, 200 Cal. 348, 358, 254 P. 532; 21 Cal. Jur. 213. We are of the opinion that the demurrer of F. Justin McCarthy, Inc., was properly sustained, but the demurrers of the Fidelity & Casualty Company and T. J. Nolan were erroneously sustained.
The judgment is affirmed as to F. Justin McCarthy, Inc., and reversed as to the Fidelity & Casualty Company and T. J. Nolan; the said F. Justin McCarthy to recover his costs on this appeal.
On Rehearing.
A rehearing was granted in this case in order that the court might more thoroughly examine and consider the pleadings and proceedings. This having been done, it is the opinion of the court that the decision heretofore rendered should be, and it is hereby, approved and adopted as the decision of this court.
PER CURIAM.
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Docket No: Civ. 9425.
Decided: May 21, 1935
Court: District Court of Appeal, First District, Division 1, California.
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