228 P. 1029 | Cal. | 1924
Lead Opinion
Plaintiff appeals from a judgment following an order sustaining defendant's demurrer to the second amended complaint. The action is one for damages for alleged malpractice. The complaint alleges that the defendant is, and at the times referred to was, a duly licensed and *385 practicing physician and surgeon, and proceeds as follows: "That on or about the first day of May, 1920, plaintiff herein suffered a severe cut by glass to the second finger of her right hand, and then and there, at San Rafael, California, placed herself under the care of, and employed defendant to sew up, care for and cure same for a reasonable reward to be paid by plaintiff to said defendant for his said services to plaintiff. That said defendant then and there accepted said employment and received from plaintiff a fee for his said services.
"That upon accepting the employment hereinbefore set forth, defendant administered the following treatment and services to plaintiff, to wit: defendant thereupon sewed up the cut surface of plaintiff's injured finger and then bandaged the same up. That at said time and place, the tendon under the cut surface of plaintiff's said injured finger was severed, all of which could have been ascertained by defendant, by the use of ordinary care and skill, but was unknown to plaintiff. That defendant failed and neglected to ascertain by the use of ordinary care and skill, that said tendon was severed, and carelessly, negligently and unskillfully, failed and neglected to sew up the said severed tendon under plaintiff's said injured finger. In a few days time plaintiff returned to the office of said defendant, and said defendant thereupon removed said bandage and again dressed and rebandaged said finger. That in a few days time plaintiff again visited defendant at his office, and said defendant thereupon removed the bandage and discharged plaintiff as cured. That after a period of about two weeks plaintiff noticed that her said finger did not straighten, but remained bent. That plaintiff thereupon returned to the office of defendant and reported to him the condition of her said finger and exhibited it to said defendant. That thereupon said defendant advised plaintiff to return home and that the said finger would straighten out in a few weeks. That at the end of said period plaintiff's said finger still remained bent and was beginning to lose life. That plaintiff did not visit defendant any further."
The demurrer was both general and special, the grounds of special demurrer being uncertainty, ambiguity, and unintelligibility, with twenty-two specifications under each of these grounds. The order sustaining the demurrer granted *386 leave to the plaintiff to amend within ten days, and plaintiff having declined to avail herself of this permission the judgment followed from which this appeal is prosecuted.
In support of his general demurrer respondent presents three principal contentions: (1) That the complaint does not contain a sufficient allegation of negligence; (2) that no facts are alleged showing a causal connection between the claimed negligent acts and the injuries complained of, and (3) that the cause of action is barred by the statute of limitations. [1] It may be said in passing that there is no merit in the third contention inasmuch as it appears from the record that the action was commenced within one year following the acts complained of. [2] As to the first contention we are of the opinion that the allegation "that defendant failed and neglected to ascertain by the use of ordinary care and skill that said tendon was severed, and carelessly, negligently and unskillfully failed and neglected to sew up the said severed tendon under plaintiff's said injured finger" is a sufficient allegation of negligence as against a general demurrer. [3] It is settled by a long line of decisions in this state, beginning with the leading case of Smith v. Buttner,
It is, of course, conceded that this rule is always subject to the qualification and condition that "it must appear from the facts averred that the negligence caused or contributed to the injury." (Champagne v. A. Hamburger Sons,
True, these allegations in themselves contain no averment of facts bearing upon the issue of proximate cause, but they do refer back and by reference incorporate within themselves the allegations previously quoted herein which set forth the facts upon which this action is based. These allegations, stripped of legal verbiage, state in effect that (1) the tendon of plaintiff's finger had been severed by a piece of glass, (2) defendant, employed as a physician to treat said injury, failed to discover that the tendon had been severed, (3) the defendant failed to sew up the severed tendon, and (4) as a result of such failure to discover the severance of the tendon and the consequent failure to sew it up, plaintiff's right hand became permanently crippled. It seems to us, therefore, that the requirements of the rule have been met in the instant case.
It is contended that in order to state a cause of action the complaint should have contained the allegation that good practice required that a severed tendon be sewed up and that if the tendon had been sewed up no injury would have resulted. [5] The allegation that "defendant carelessly, negligently and unskillfully, failed and neglected to sew up the said severed tendon under plaintiff's said injured finger" *388 and that "as a result of the carelessness, negligence and unskillfulness of the defendant as hereinbefore stated, plaintiff's said finger has become useless and her right hand permanently crippled . . ." is in effect an allegation that the resultant injury was due to a failure by the defendant to sew up the severed tendon in the plaintiff's finger. That allegation is equivalent to an allegation that good practice required a severed tendon to be sewed up and that if the tendon had been sewed up, no injury would have resulted. By definitely placing the responsibility for the resultant injury upon the defendant's failure to sew up the tendon, the allegation thereby obviously negatives the idea that the injury might have been permanent even if the tendon had been sewed up.
A review of the cases cited in support of the rule that from the facts averred it must appear that the negligence caused or contributed to the injury, discloses the fact that those cases wherein it was held that the pleadings did not satisfactorily fulfill this requirement, are readily distinguishable from the case at bar. In Smith v. Buttner,
The case of Manwell v. Durst,
The case of Merriam v. Hamilton,
The same criticism is applicable to the case ofSweat v. Foster,
In the case of Davis v. Rodman,
Respondent insists that the special demurrer on the ground of uncertainty is well founded. With this contention we cannot agree. [6] All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action. (Goldstein v. Healy, supra.)
The judgment is reversed.
Richards, J., Seawell, J., Lawlor, J., and Waste, J., concurred.
Dissenting Opinion
I dissent.
I am unable to distinguish this case from Smith v. Buttner and think, therefore, that the judgment herein should be affirmed unless we are willing to overrule that case, which has stood unchallenged for more than thirty years and has been cited with approval more than thirty times. The cases cited in the majority opinion are in full accord with that case, and no decision to the contrary has been cited. A comparison of the allegations of the complaint herein with those under consideration in Smith v. Buttner, on the one hand, and with those under consideration in Goldstein v. Healy, on the other hand, compels the conclusion in my mind that this case is ruled by Smith v. Buttner. That conclusion is confirmed byMerriam v. Hamilton, which expressly follows Smith v. Buttner.
I am also of the opinion that the special demurrer herein for uncertainty was well founded as to some of the particulars therein specified.
*392Shenk, J., concurred.