12 P.2d 744 | Cal. Ct. App. | 1932
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *464 This is an appeal by plaintiffs, husband and wife, from an order of the trial court granting a nonsuit at the close of plaintiffs' evidence. The action was one for damages for alleged tortious treatment of the appellant wife in connection with her delivery of a child in a hospital alleged to have been operated by respondents. The evidence shows that Mrs. Inderbitzen was received into the hospital for the purpose of receiving the hospital and medical attention necessary in the delivery of a child; that she was shown into a room where she was undressed and examined by a young man whom she took to be a medical student and upon her demanding a doctor the young man left the room and returned with an older man who subjected her to a rectal and vaginal examination after taking his hands from his pockets and without washing or sterilizing them; that she was then subjected to a similar examination by the younger man, also without sterilizing his hands; that she was taken to the delivery room where she was examined intimately two or three times each by at least ten or twelve young men whom she took to be students; that several of these persons rolled her over and poked and prodded about her body several times; that she screamed and protested repeatedly at this treatment and "whenever I screamed and protested they just laughed, told me to shut up". There was evidence by a physician who examined Mrs. Inderbitzen two months later that there was then a tear in her uterus which was infected and discharging profusely.
The motion for nonsuit was in the following language: "I move for nonsuit on the grounds that the allegations of the second amended complaint have not been sustained, *465 and upon the further ground that the charges of negligence and carelessness have not been proved."
[1] A motion for nonsuit must state the grounds with sufficient particularity to direct the attention of court and counsel for the plaintiff to the particulars in which the evidence is insufficient so as to enable counsel to supply the omitted evidence if that can be done (Moore v. Steen,
[4] Respondents contend that there was no proof of the corporate entity of Lane Hospital and Stanford Hospital. This was not made a ground of motion for nonsuit and cannot now avail them. Besides an answer was filed on behalf of the trustees of Leland Stanford Junior University, operating such hospital. We may take judicial notice of its incorporation by special statute. (Code Civ. Proc. 1875.)
[5] It is further urged that the hospital is a charitable *466
one and not operated for profit, but this is an affirmative defense, the burden to prove which rests with the defendant. (Lewis v. Young Men's Christian Assn.,
[7] Coming to the one ground which respondents did specify, i.e., that there was no proof of carelessness or negligence, we are satisfied that it was not well taken. Mrs. Inderbitzen testified that she was examined through the rectum and vagina by two men with unsterilized hands. [8] While it is the general rule that the propriety or impropriety of particular medical treatment can only be established by expert medical testimony, this rule is subject to the exception that if the particular matter is one of general knowledge expert evidence is not necessary. In Barham v. Widing,
[9] The repeated examinations of Mrs. Inderbitzen while she was in labor by ten or twelve different men which caused her to scream and protest, and the levity and *468
rudeness displayed in laughing at her and telling her to shut up, present anything but a pretty picture. In Stone v. William M.Eisen Co.,
This treatment, at least after Mrs. Inderbitzen had objected to it, constituted an assault upon her or trespass to her person. A physician or a medical student has no more right to needlessly and rudely lay hands upon a patient against her will than has a layman. That the jury might have awarded substantial damages for these assaults seems clear from the distress of mind indicated by Mrs. Inderbitzen repeatedly screaming and protesting.
Counsel for respondents argue, however, that the case was not tried on the theory of assault. The complaint alleged these facts, the evidence was offered to prove them, and nothing appears in the transcript to lead us to believe that plaintiffs did not rely upon them to establish a cause of action.
It should be understood that throughout this opinion we have taken the evidence most strongly in plaintiffs' favor as we must where an appeal is taken from a nonsuit. We *469 wish it understood that we are expressing no opinion as to the weight of the evidence, or its truth or falsity.
The order appealed from is reversed.
Knight, Acting P.J., and Cashin, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on July 23, 1932, and an application by respondents to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on August 22, 1932, and the following opinion then rendered thereon:
THE COURT.
The petition for hearing is denied. In denying a hearing, however, we withhold our approval from that part of the opinion which seems to suggest that a nonsuit cannot be sustained on appeal except upon the grounds set forth in support of the motion. [10] The correct rule, as we have heretofore held, is that when a motion for nonsuit has been granted, the judgment will be upheld if it can be justified on any ground, whether made a ground of the motion or not. (Anchester v. Keck,