227 P. 247 | Cal. Ct. App. | 1924
Appellant instituted an action for damages against The Regents of the University of California, a corporation, and Robert T. Legge, as codefendants, for injuries claimed to have resulted from the negligence of a physician in charge of an infirmary maintained by respondent's codefendant at the University of California in Berkeley. Demurrers were interposed to an amended complaint by defendants separately. They were both sustained with leave to amend. Plaintiff declined to further amend, whereupon separate judgments were entered in favor of both defendants. Separate appeals were thereupon taken. The appeal from the judgment in favor of defendant corporation, Davie v. Regents of the University of California,post, p. 693 [
In support of the judgment in favor of respondent Legge it is claimed that as no cause of action was stated against *691 his codefendant, The Regents of the University of California, by reason of the fact that such corporation was a state agency exercising governmental functions, no cause of action is stated against him as the servant and agent of the corporation for acts done while he was acting within the course of his employment, it being urged that of necessity the immunity of the principal must extend and cover the agent.
There is no merit in this contention. The immunity does not extend to agents. (Brouder v. City of Hendersen,
The principle which protects the Regents is inapplicable to him. (Perkins v. Blauth,
It is further urged that irrespective of this question the demurrer was correctly sustained for the reason that there is a misjoinder which is prejudicial to defendant, and for the additional reason that the complaint is fatally defective in that it is uncertain, unintelligible and ambiguous in the respects pointed out by the dumurrer.
We see no merit in these contentions. [2] A complaint is not necessarily defective in which there is united with a defendant another against whom no liability is alleged. (Aseveda v. Orr,
[3] Nor do we think, as claimed, that the complaint is unintelligible or uncertain. It alleges in unequivocal terms a complete cause of action against defendant Legge. It first charges that for a consideration he personally performed an operation upon plaintiff at the infirmary mentioned for the removal of his tonsils, and that he undertook and agreed to render all medical aid and surgical treatment incident thereto; that he negligently failed to make a thorough examination of plaintiff's neck and throat. It further charges that the operation was performed in a negligent and careless manner without skill in that excessive force was applied to plaintiff's head, jaw and neck, and as a direct result therefrom plaintiff's jawbone was dislocated and the left side of the atlas vertebrae of his neck was fractured, crushed and dislocated, and that his physical condition by reason of these injuries became seriously aggravated and painful. Then follow allegations to the effect that plaintiff suffered great pain and anguish, and that in addition thereto and by reason of the treatment *693 plaintiff also suffered inconvenience and annoyance by reason of the unnatural poise or position of his neck and head, which unnatural position is permanent and will continue throughout plaintiff's life. Such allegations we believe to be sufficient to require defendant to plead to the merits and thus give plaintiff his day in court.
For the reasons stated the judgment of the lower court sustaining the demurrer of defendant Legge is reversed.
Knight, J., and St. Sure, J., concurred.
A petition by respondent to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 23, 1924.
All the Justices concurred.