Leonard v. Watsonville Community Hospital

F. No. 19485. In Bank. Dec. [S. 1956.] Appellant, LEONARD, GRACE T. v. WATSONVILLE Respondents. al., COMMUNITY HOSPITAL et Appellant. Martin for Donegan & and Elton P. Crist, Peters McCarthy & Franich and Boyle & Parker, Pope, Wyckoff, Respondents. Henry F. Brauer about A scissors-shapedmetal instrument GIBSON, C. J. plaintiff’s left in Kelly clamp, was called long, 6 inches performed on her at de- operation was an when abdomen by Doctors was commenced operation The hospital. fendant employee an Kay Pogatschnik, who was Lacy Slegal. and Eiskamp surgical Doctor nurse. hospital, acted as request of Doctor operation at the part assisted operation, during the Lacy. unconscious entire Plaintiff" was in con- was approximately hours. She lasted five days in the hos- pain during she remained siderable pain persisted for operation, and pital following the X-ray pictures returned home. months after she several clamp operation revealed a months after the taken about six right quadrant her lodged upper abdomen. brought this action clamp removed, and was hospital, and the damages from the doctors recover motions ease surgical At the close nurse. "granted Eiskamp, Pogatschnik as to were nonsuit appealed ensuing plaintiff has hospital, judgment.1 negli- presented are questions whether loquitur and

gence ipsa under the doctrine of res was raised dispelled as a arose, if an inference it was whether, of law. matter hospital,

Evelyn Craig, superintendent who Slegal Eiskamp Lacy, were called and defendants testify under section of the Code of Civil that Procedure, provides party in a civil action a which party. call and examine an adverse Lacy, charge operation, of who was The of He operation summarized as follows: scheduled be exploratory deciding upper after that an of examination right quadrant plaintiff’s abdomen The should made. against Lacy Slegal 1The case and was settled after the nonsuits were granted as other defendants. nurse, fur- surgical act hospital assigned Pogatschnik charged plaintiff and instruments, equipment and nished all of the nurse. the services of the room and for for the use in- making Slegal and began Lacy with operation gall her exposing plaintiff’s upwards, navel cision from which was diseased. bladder, Lacy operation begun, after the was

About 40 minutes surgery in performing Eiskamp, who had been requested gall to look at bladder. part hospital, another of the inspection Eiskamp a and recommended that made visual gall Eiskamp room, left the be removed. After the Lacy bladder sigmoid colon, Slegal discovered a “mass” in the appeared Lacy again Eis- be cancerous. consulted agreed that should removed and kamp, who mass help. operate The doctors decided not to on the offered to gall Lacy bladder, and, began upper while to close the half incision, Eiskamp Slegal prepared to remove mass, quadrant. which was in the lower left None Eiskamp’s performed work upper portion plaintiff’s abdomen, and he left the room before final closure During operation Lacy Slegal incision. used Kelly clamps about 18 scissors-shaped which are uncurved Eiskamp instruments. anything did not use but curved clamps. Lacy paid Slegal his fee but never received bill from Eiskamp for his services.

Lacy further testified surgical keeps nurse set tray very instruments surgical close to the field and principal that one her functions tois hand instruments to the doctor and take them request back from him. No an instrument by Lacy. count was practice made hospitals generally is to maintain sponge count before closure of an incision and to account for the needles used suturing. practice This is followed the nurses at hospital. defendant Slegal’s testimony substantially Lacy confirmed sequence

as to the events the operating room. He said Eiskamp did not part take in closing upper portion of the incision and left before final closure of the abdomen.

Eiskamp testified Kelly that no clamps were used in his part of the operation, that he “had nothing to do with the gall bladder” and that in order to speed operation he Slegal worked with on the tumor in quadrant the lower left of the abdomen. surgical Craig instruments testified

Superintendent placed they in sterile hospital, that are the are furnished number and that she believed packs specified containing a operation all clamps pack. in a After an Kelly are 18 there operating room, directly the taken instruments are nurse packages by a or some into reassembled cleaned and operation of plaintiff’s time employee. At the hospital other being responsible for col- designated as was person no one reassembling instruments, and none of the the lecting and any missing. instrument reported that was hospital employees practice in- no established in area “have the Hospitals surgery.” Sponges before or after counting either strument usually and an instrument count counted, are and needles surgeon. the requested if is made unintentionally foreign object is in a left When ordinarily negligence the result of patient’s abdomen it is 409].) (Ales Ryan, Cal.2d of someone. injuries un unusual patient receives while And where any persons had control over all of the who conscious, might have caused body the instrumentalities meet the inference injuries may properly called explanation of their giving an conduct. negligence by 687, A.L.R. (Ybarra Spangard, Cal.2d 486 is to raise The evidence sufficient 1258].) loquitur ipsa as doctrine res negligence hospital. Pogatschnik Biskamp and the assisted Biskamp, during operation another in at one time or operation; plaintiff’s body in in instrument left control hospital nurse; employed the nurse and hands places upon This and reassembled the instruments. furnished explanation. (Ybarra Spangard, them the burden of initial supra.) ipsa loquitur the inference of res

Plaintiff contends dispelled as a of law and that was not matter therefore granting court erred motion a nonsuit. determining applicable ipsa lo test when same dispelled deciding quitur inference is a matter of law as in (See conclusively other inference when rebutted. Melody Lane, Rose Cal.2d R. Leet v. Union Pac. R. 621-622 long 158 A.L.R. has been the rule granted only state that nonsuit dis when, regarding conflicting giving evidence, to the evi legally indulging dence all the value to which it is entitled, may be drawn from that every legitimate inference which that there is no sub properly court determines evidence, the plaintiff. in favor of the support a verdict stantial evidence Estate (Seneris Haas, 631].) Caspar, 147, is, 172 150 P. There how Cal. [155 of ever, general It is qualification a on this broad rule. a that where the evidence raises an inference that settled non exists, party produces fact and either clear, positive, existence of the fact that is uneontradieted rationally disbelieved, and of such a nature that it cannot be the nonexistence of the fact established as matter of is law. (See Coffin, 868].) Blank v. 461 In 457, [126 dispelled these circumstances the inference is a matter of as and, necessary if the fact is law, inferred to establish an essential element of case, a nonsuit or directed proper. (Engstrom verdict is v. Auburn Corp., Auto. Sales 11 verdict]; Cal.2d 64 Crouch [77 [directed 1059] Co., Ltd., ; Gilmore Oil 5 Cal.2d 330 [54 709] [nonsuit] Muensch, Cal.App.2d Ceranski v. 60 751 [141 750] [directed ver ]; Cal.App.2d Johnston Black Co., dict [insufficiency of evidence].) 921] testimony dispels which defendants claim the inference ipsa loquitur of res aas matter of law was elicited from witnesses called under section the Code Civil Pro- plaintiff cedure,2 and contends that such evidence cannot be ruling used in on a dispel nonsuit to an inference on which plaintiff provides relies. party Section 2055 in effect that a may action civil be if examined as under cross-examination by party party examining adverse and that such by testimony witness shall not may bound the witness’ by rebut other evidence. Before section 2055 was enacted, litigant who party testify called adverse found that the witness was treated as his own that his party provides: 2055 of 2Section. the Code of Oivil Procedure “A any proceeding person the record of civil action or or a whose proceeding prosecuted defended, immediate benefit such action or or directors, officers, member, agent, superintendent, employee, or the or managing agent party person, agent, or or or officer employee municipal corporation party of a which is a or to the action may proceeding, by party be examined if adverse as under cross- subject examination, applicable to the rules to the examination of other party calling witnesses. The such adverse witness shall not be bound by testimony, testimony given by may his and the such witness re by party calling by butted him for such examination other evidence. witness, by called, counsel, Such when so be examined his but own ’ ’ only to the matters testified to on such examination. by applicable rules direct was restricted examination (See Co., 540, Pac. Smellie v. Southern Cal. examination. changed 529].) P. This rule was section 555 [299 testimony that elicited under 2055 so testimony of his own but is not treated as witnesses as testi mony obtained cross-examination the defendant’s Co., (Smellie witnesses. Pac. 212 Cal. 540, Southern Figari Olcese, P. 184 Cal. P. however, clear, 15 A.L.R. all such testimony provision is evidence in case and that party calling the section that a an adverse witness shall testimony does be bound his not mean that such given proper weight, not be its “but, as it merely, declares, calling party such witness shall not be rebutting from impeaching concluded (Figari Olcese, the witness.” Cal. P. ; 425,15 A.L.R. see Smellie v. Southern Pac. 212 Cal. 192] 529]; Dempsey P. Movers, Inc., v. Star House 720, 722 ; 13 Cal.L.Rev. 302.3) 825] squarely It has been held an inference plaintiff a be completely dispelled which relies a .as by given by evidence matter law witnesses called under (Crouch Co., section 2055. v. 5 330 Ltd., Gilmore Oil Cal.2d 709].) In P.2d the Crouch case an inference that one [54 agent proof arose from Smith was an defendant of the advertising insignia painted the defendant’s fact by operated Evidence under on Smith. was adduced trucks dispelled 2055 the court found the inference section proper. that a nonsuit was law, and it was held a matter as McBride, 25 Cal.2d 318 in v. Our decision Crowe [153 holding with Crouch is not inconsistent 727], opinion an of the examination will be seen from As ease. point involved was whether McBride, the v. in Crowe question for the trier of present a to was sufficient evidence testimony of the we held that the in connection fact, and an under section to examination given pursuant defendant a establish could be used in the case and evidence 2055 was elicited use of evidence him. The against of action cause Evidence,’’ Cal. 13 Cases “Some Reeent entitled article 3In an Kidd, commenting (1925), on sec 285, A. M. Professor 302 L.Rev. calling party such adverse 2055, states that “The section said: tion party party testimony, as if a were ever bound be bound shall not that an adverse meant was What was witness. impeached might to the same be examined party witness as a called ordinary witness.’’ as the extent

517 dispel 2055 under inference was not involved. Plaintiff, however, following relies language in McBride, supra: considering v. “In propriety Crowe nonsuit, accept must most we the evidence favorable to plaintiffs disregard that which is unfavorable. The testi- mony who defendant, testify was called sec- Procedure, tion 2055 of the of Civil Code falls within this rule and is to be treated the case insofar as it plaintiffs.” language must, course, is favorable to This light question facts of the and the read case presented is general for determination. as a prop- correct osition, given interpreta- and it should not a strained presented on tion to reach a conclusion a matter not to or by the court. considered involving the use evidence adduced

Cases under section presumption dispel distinguished 2055 to must be Generally involving speaking, may those it inferences. dispelled presumption be said that a aas matter of law wholly only a fact which is when with irreconcilable it is proved the uncontradieted of the party relying witnesses,4 party’s it or own (Mar Mary v. Shee Corp., 1, land Assur. 190 Cal. 9 ; P. v. [210 Steward 269] Paige, Cal.App.2d 820, 90 825 P.2d 858]; see [203 Chak makjian Lowe, 308, 313 801]; Cal.2d Eng [201 Auburn Corp., 64, strom v. Auto. Sales 1059]; Co., Smellie Southern Cal. 540, Pac. Mundy Marshall, 529]; P. cf. Brown, Cal.App.2d Levin v. Accordingly, general rule that presumption cannot dispelled by favorable be so the testi mony given pursuant of a defendant to section 2055 because a,s a defendant called under that section is treated (Smellie witness. Southern Pac. 212 Cal. Lopez P. 529]; Knight, 121 Cal.App.2d 387, 390-391 v. Uarte, Green recognized exception general is 4There a to the rule where evidence party absolutely opposite conclusive, of instance, is as for where presumption person of death of a who has not been heard from in years dispelled by production person seven is (See in court. Engstrom 64, Corp., v. Auburn 1079]; Auto. Sales Cal.2d 540, Smellie general Southern 529].) Pac. Cal. 552 [299 P. subject qualification rule also is to the testimony that where party relying presumption product a or of his witnesses is inadvertence, testimony operate or mistake presumption. dispel such will not to (See Maryland Corp., 1, Mar Shee Assur. Gal. 269].) [210 P. Engstrom 78-79 see v. Auburn Auto. Sales Corp., 1059].) hand, Cal.2d On the other an seen, dispelled as we have can be as a matter inference produced by party. evidence either law follows what has been said that the testi mony plaintiff of a witness called under section 2055 dispel be used to an inference which the provided relies, clear, positive, the evidence is uncontradicted rationally such and of a nature that cannot be disbelieved. to particularly appropriate It is allow to be in like present used to rebut the inference cases where plaintiff, receiving she unconscious because while injuries, given in her treatment that resulted the benefit ipsa loquitur, persons for of a liberalized test and all who any body or had over her the instrumentalities which control injuries required her meet might have are to the in caused giving explanation negligence by an of their con ference given by in evidence If these circumstances wit duct. as a under section 2055 establishes matter law nesses prima from negligence, the defendants free facie one of on the inference against that defendant based should case position respect to with that defendant fall, and prove had failed all the facts as if she should be the same necessary to the inference. raise if course, be disbelieved there is may,

A witness doing so, party and the of a any ground for interest rational justify in will some circumstances result of case (See testimony. disregarding trier of fact Ham ; Abadjian, 30 Hicks 804] ilton v. Cal.2d 659-661 Blank Reis, are There 461-462 Coffin, party obtaining however, the interest of a situations, where all of his himself will render favorable to judgment part of example, Por where testimony subject to disbelief. him harmful but favorable testimony is a defendant’s that the witness is. it tends to show as where codefendant, him to own establish his it more difficult or liable makes testimony may be used portion of his fault, lack provided the codefendant unfavorable to rebut other reason collusion nothing to indicate there is testimony. disbelieving the participation Eiskamp’s toas Slegal Lacy, consisted

operation effect to the and uneontradicted clear it was Eiskamp, Biskamp responsible was not leaving clamp the in abdomen. any way This did not in tend to Lacy or Slegal but, benefit to contrary, the was disadvan- tageous to them the because exoneration of one defendant would necessary have the effect of increasing possibility the liability of part the of each of on the other defendants. The ground record no disbelieving indicates rational their testimony, and we hold that the inference against raised - Biskamp under of ipsa loquitur the doctrine was dis- pelled as a matter of law. evidence, however, compel does not the conclu

sion negligence that the part surgical inference of on the hospital nurse and has dispelled. the been relied to given by Craig, absolve them was who was a hospital employee who, in of advantages view to her of maintaining relationship hospital, favorable with the obviously an had interest the outcome of the case. She litigation likewise had interest in the as to the nurse be cause hospital, employer, of would liable for acts of employment. Craig’s nurse within the her testi scope mony (See therefore could be disbelieved the trier fact. 49, Abadjian, Hamilton v. 804]; Hicks Reis, 654, v. P.2d 788]; Cal.2d 659-661 Blank Coffin, 20 457, 868].) 461-462 Cal.2d

Moreover, Craig’s testimony accepted by if were required trier being true, of fact as it is not of character dispel negligence against hospital the inference of raised seen, and the As testified Craig nurse. we have that it was practice hospitals sponges count area to respect part operative procedure, needles as and with implements” to “other stated was “no established she there practice counting before or sur instrument either after gery.” say if that was the Even we assume she intended it practice instruments, not to count evidence would not conclusively hospital and nurse were free establish that the liability negligence. defendants seek avoid These only required on theory they exercise were degree employed by hospitals other and nurses skill knowledge, how community. It is matter of common ever, special required counting that no skill instruments.

Although proof practice under such circumstances be done and or custom some what should care, assist in what constitutes due the determination conclusively (Cf. of care. Ales does not standard establish 409]; Barham v. Widing, Ryan, Stump, Anderson Cal. 206, 216 P. 210 Cal. Inderbitzen Lane App.2d 761, 765 [109 905].) 13 P.2d Hospital, Cal.App. 467 [12 the ground negligence be excused cannot “General negli kind the same locality practice that others in same gence.” (Ales Ryan, no law that there say as a matter of was

We cannot hospital keep to an instru duty and nurses part on the of the surgeon determining to assist ment count in order had removed from the been instruments used whether all patient before final closure. Eiskamp is and to defendant judgment is affirmed Watsonville Pogatschnik and Com- defendants

reversed as to munity Hospital. McComb, J., J., and Spence, Schauer, J., J.,

Traynor, concurred. The holding Dissenting. and J.—Concurring

CARTER, An epitomized as follows: opinion may be of the testimony ad- of negligence which arises of inference of the Code under witnesses examined verse testimony by dispelled may such be of Procedure Civil thereby and is entitled is not bound though plaintiff even to her is favorable upon of which rely all such to of The unsoundness is unfavorable. disregard all that and it of mere statement holding is so obvious that only directly It not absurdity. is should disclose its (Code statutory Proc., Civ. law of this state conflict with and of this court but countless decisions 2055) § say double talk to of the state. sheer appellate courts may binding upon party a relied that which is not be dispel or inference—in repel other evidence—an party. favor such provides Procedure the Code Civil

Section proceeding party to the civil or or “A record action proceeding benefit action or person a for whose immediate such prosecuted may by . defended . . examined subject party cross-examination, as if under adverse to the applicable to the examination of other rules witnesses. calling party by s%ich adverse witness shall be bound testimony given by may and the testimony, such witness by party calling him by rebutted such examination noting After (Emphasis added.) evidence. ...” other in the ease at were whether questions presented bar raised negligence was under doctrine of whether, if ipsa loquitur arose, such an inference and dispelled law, matter we find this statement it as a was majority opinion: of the superintendent hospital, “Evelyn Craig, who Eiskamp by Slegal were called Lacy, defendants of the Code of testify section 2055 plaintiff to Civil party may civil action a provides that a Procedure, (Emphasis witness.” added.) and examine an adverse call provides great Civil Procedure Code Section misleading quoted statement more than the above would deal discussing the effect section 2055, lead one believe. In majority opinion following from the statement is of provides party effect interest: “Section as if under action be examined cross-examination civil party party examining and that the adverse shall not be bound the witness’ witness rebut other evidence. Before section 2055 was enacted, litigant party called an testify who adverse that the was treated found witness as his own and that his by applicable examination was restricted the rules to direct (See examination. Smellie v. Southern Pac. Co., 212 Cal. changed 555 This 529].) by P. rule was 540, section [299 testimony by elicited so that 2055 under testimony is not treated as own his witness but testimony as obtained cross-examination of the de (Smellie fendant’s witnesses. v. Southern Pac. Co., 212 Cal. Figari 540, Olcese, 556 P. 775, 184 Cal. 782 [299 [195 just 425, 192].)” quoted 15 A.L.R. excerpt P. than misleading—and is more the cases cited proposition stand for they do not for which are cited. illustration, in the Smellie case, supra, page For at 556, we stating find this court section 2055 “is a statute re as medial and such character, should receive a construction by carry the courts which will into effect accomplish purpose legislature intent and of the in enacting it. This was, intent as we read section, a party enable to an party to call an action adverse as a witness purpose eliciting such may said testify witness to which facts calling party are him, being without bound favorable any by testimony adverse said give. witness Only by construction such can the full purposes remedial of said

522

legislation only express Not but think so, be effected. we clearly plainly terms of said section indicate that such legislature in purpose was the the enactment of said party, section. As the adverse when noted, before called as by party calling him witness, is examined ‘as if under party calling cross-examination’ and the him ‘shall not be ’ testimony. language bound his is difficult to conceive of explicit.” more direct Smellie case involved a Figari case, directed verdict. In the a trial on the merits provision was and the court there held that involved “This its ^[2055] proper does not mean that such weight, but merely, as it testimony may declares, that the not be party given calling rebutting shall not be concluded from such witness impeaching or from testimony, (Dravo witness. Fabel, 421, L.Ed. 170, see, also, 132 U.S. 487 S.Ct. [33 Notes].)” City County Rose’s In Daniels v. & U.S. San 614, 625 Francisco, 785], majority 40 Cal.2d [255 specifically held that this court “Plaintiffs maintain that explained should have ‘the instruction plaintiffs weigh for should them elicited insofar itas disregarded it but that should be favorable, was itas insofar if the to which unfavorable, matters it referred were not ’ satisfactorily (Emphasis established other evidence. add relying upon plaintiffs are ed.) involving But authorities rulings upon (Marchetti a motion either a nonsuit v. South 679, Co., 529]; Dempsey 204 Cal. P. ern Pac. v. Star Cal.App.2d Movers, Inc., 720, House 825]) (Smellie for a verdict v. Southern directed Pac. ; People Mahoney, Cal. P. 529] 1029]). The rules therein stated no have application upon of the case for a submission determination (Figari on the Olcese, of the factual issues merits. Pichinino, 425, 15 Dorn Cal. P. A.L.R. The distinction case, where, after a full noted Smellie discussion, elicited under stated section 2055 ‘is, of evidence in the case and course, be considered in de termining upon the issues of the case the trial or final hearing ’ or if the court, jury, by case is before a jury. (212 559; see, also, Newmark, Cal. Green Cal.App. Balasco ; Chick, 37-38 84 Cal.App.2d [28 395] 76].) Since case was submitted to [192 jury merits, on the assailed proper. instruction was Vogt, (Joseph 439, P.2d 947]; Ry. Co., Cal.App.2d 92, Cloud Market Street ” Movers, Inc., House 2 Cal. 191].) Dempsey v. Star appeal judgment from a App.2d was 825], there, however, declared that The court nonsuit. on plaintiff binding under section 2055 was taken be plaintiffs but could so far as it was favorable considered together plaintiffs. with other to evidence favorable court plaintiffs on binding concluded: “There no evidence was of which the trial could hold that deceased basis court guilty contributory negligence matter of law. as a (Marchetti for The motion should have been denied. nonsuit ” v. Southern 204 Cal. 679 P. Pacific presently appeal We are concerned with an an order granting a nonsuit.

Every member of this has, another, court at one time or relied upon and stated applicable the rule law when “ for a motion nonsuit is made: ‘A motion nonsuit properly granted be only . . when, disregarding . “when, conflicting giving evidence, to evidence all legally value to which is indulging every entitled, legitimate inference which evidence, be drawn from that the result is a determination that there is no evidence substantiality sufficient to support a verdict favor of the plaintiff.” . .. “Unless it can said law, as a matter of no ... other legally reasonable conclusion is deducible from the evidence, and holding other would be so lacking evidentiary support reviewing that a court would impelled to upon reverse it appeal, or the trial court set it aside as a matter law, justified the trial court is not ” taking the case from jury.” (Seneris Haas, . . P.2d 915]; J.) In Carter, Hinds v. Wheadon, 19 724], Mr. Chief Justice speaking Gibson in for the said: court, “Where judgment upon is rendered motion nonsuit, the court must assume that all evidence received in favor relevant to the issues is presumptions, true. All inferences questions and doubtful favorably must most be construed plaintiff. ipsa In ... in- loquitur] cases an [res ference arises accident resulted from a want proper part care on the in- the defendants. ... cumbent bring defendant in such a forth ease rebut negligence, and under such circumstances a improper nonsuit since the ease should be submitted to jury.” (Emphasis added.) Mr.

524 Credit in Milana v. court speaking Shenk, Justice 621], A.L.R. 869, 165 P.2d Co., Cal.2d 335 Discount 27 [163 Sugarman, v. upon rule; approved and relied Golceff Tumin, 36 Cal.2d and Raber v. 665], P.2d 152 [222 speaking for the Schauer, 574], Mr. Justice 654 P.2d [226 Ash, in Easton v. upon rule; relied approved and court, speaking Traynor, Mr. 433], P.2d Justice 18 530 [116 Palmquist upon rule; approved and relied court, for the Spence, 26], Mr. Justice 92, 95 P.2d Mercer, 43 Cal.2d v. [272 rule; approved and relied court, speaking for City Angeles, 46 Cal.2d 841 P.2d Aguirre Los v. [299 approved speaking court, for the McComb, Mr. Justice 862], upon the rule. and relied firmly embedded in stated rule has been so

The above incomprehensible find it state, law of this I should fail to realize majority of the members this court (to very following cite but a cases, and those above (For sub silento! statements and few) will be overruled Doyle (1890), v. 86 rule, see: restatements Schaufele (1907), Archibald Estate Matteson 5 834]; P. v. Cal. 107 [24 Cal.App. Hercules etc. Co. Hocknell ; 441 P. Oil v. 723] [90 Cal.App. 341]; Leitch Marx (1907), (1913), 5 702 P. v. [91 Cal.App. 208 P. Fildew v. & Nimmo ; 21 Shattuck [131 328] Cal.App. 42 (1918), 866]; 39 P. Scott v. W. Co. Sciaroni [177 Cal.App. (1924), 827]; 577 P. Dawson v. Tulare Union 66 [226 Cal.App. High (1929), 424]; 98 138 P. Sch. Nicholas v. [276 Cal.App. (1931), 505]; Jacobson 113 382 P. Green v. [298 Cal.App. (1933), 395]; Newmark 136 32 P.2d Cash v. Los [28 Ry. Angeles Corp. Cal.App.2d (1935), ; 6 738 P.2d [45 280] Cushing Cal.App.2d (1939), Estate 30 340 ; P.2d [86 375] (1939), Cal.App.2d Lombardo 33 917]; Knecht v. 447 P.2d [91 Young Cal.App.2d 52 1 (1942), ; Kersten v. P.2d [125 501] Cal.App.2d (1943), Estate Rabinowitz 48 106 P.2d [135 579]; (1953), Cal.App.2d MacDonald v. Jackson 598 117 [256 591]; (1953), P.2d Sanders v. MacFarlane’s Candies 119 Cal.App.2d ; 497 P.2d Lehman v. Oil [259 1010] Richfield Corp. Cal.App.2d (1953), 13]; and, 121 261 P.2d more [263 recently, Palmquist Mercer, v. 43 Cal.2d 92 P.2d 26]; [272 Dunn v. & Co., Gas Elec. 43 Cal.2d 265 745]; P.2d [272 Pacific Atchison, Ry. McBride Co., v. T. & S. F. 44 Cal.2d 113 [279 P.2d Warner Santa ; v. Catalina Island 44 Co., 966] Hilyar 310 v. Union 12]; Co., Ice 45 Cal.2d 30 [282 [286 Raymond Independent P.2d 21]; Growers, Inc., 133 Cal. App.2d ; Safeway Inc., 154 Stores, Hale v. 129 57] Rabing, Copeland ; Cal.App.2d. 124 P.2d 118] County Finley City ; & Cal.App.2d 631 [243 119] Francisco, Turner Cal.App.2d San Cal.App.2d Ralph Co., M. Parsons Alafetich, Cal.App.2d P.2d 922]; Zar v. Weber v. Assn., Cal.App.2d & Marine Cooks’ Stewards’ 328 [266 & 801]; Markwell Swift Jones, Cal.App.2d P.2d Powell v. 133 601 47]; ; P.2d [284 856] Westerlind, Cal.App.2d Katemis v. 120 537 P.2d ; [261 553] Hughes Oreb, 36 Cal.2d 854 P.2d Denbo 550]; [228 112 Co., Cal.App.2d Weston P.2d Estate 650]; Inv. 153 [245 of Jamison, 1 ; P.2d Howard Pe v. General [256 984] troleum Corp., Cal.App.2d 108 25 P.2d Hellar ; [238 145] Bianco, Cal.App.2d 757, 111 424 P.2d 28 ; A.L.R.2d [244 1451] Markwart, Cal.App.2d Sweet v. 115 P.2d 751]; 735 [252 Henning, Cal.App.2d Adams v. 117 456]; 376 P.2d Mac [255 Jackson, Cal.App.2d Donald v. Ma rino Valenti, 118 Cal.App.2d 830 ; 84] Refinite Bright Sales Co. v. Fred R. Cal.App.2d Roos, Warren v. In the case under consideration an negligence inference of arose of proved because foreign fact that Kelly a a body, clamp, left in was abdomen after she had under gone surgery performed by hospital. defendants defendant clamp prior not was surgery. there to the That fact proved by X-rays was prior taken surgery time the undertaken. In v. Haas, was Seneris Cal.2d 825 [291 said, quoting we 915], from Ybarra v. Spangard, 25 P.2d 687, 1258], 162 A.L.R that “Every custody plaintiff defendant placed whose was any period ordinary was bound to exercise care see that no unnecessary harm to him came and each would be liable for regard.” failure in this also (45 p. We said 826) Cal.2d at plaintiff that injuries “where receives unusual un while conscious and in the of course medical treatment, all those any had body

defendants who control over his or the instru might injuries mentalities which have caused the properly upon negligence be called to meet the by giving inference of am, explanation (Emphasis their added.) conduct.” In of Tice, 80, 86, Summers v. 5 A.L.R.2d analogous 91], speaking situation, of an we that said “a injured patient while unconscious on an operating table in hospital any persons could hold all or had who operation though with the even connection he could select particular particular acts person led to disability.” In the Ybarra case we held that the effect of the plaintiff decision therein was that had made out a case when produced gave he had evidence which rise to an inference proximate cause negligence injury; which was the up explain that it then to the cause defendants injury. alleged proved Lacy, Slegal, here that Drs. Plaintiff Pogatsehnik Community Eiskamp, and the Watsonville Nurse person during Hospital control her unconscious ab had surgery Kelly clamp— surgery; during dominal that object—was causing her her foreign pain, left in abdomen injury. Having proved much, an inference suffering and immediately duty devolved negligence arose and negligence inference of be the defendants rebut the in damages. In order to rebut come liable to "an af firmat must make negligence, the defendants ference of accident, in which cause for the showing a definite ive part the defendant negligence on the no element cause respects necessarily possible in all adheres, or of such care hap could not have the accident conclusion that to lead to the due to some have been care, but must pened from want unknown.” cause is cause, although exact unpreventable 290, 295 31 Cal.2d Hospital, (Dierman [188 v. Providence 12].) P.2d 388 P.2d Burke, 313], 39 Cal.2d this

In Scott v. court [247 holding Ryan, of v. 8 adopted the Ales Cal.2d 99 P.2d [64 negligence of which by inference is created 409], that “the loquitur ipsa is in evidence rule res which the itself jury and which in the absence disregarded the of negligence, to necessitates verdict in evidence as other favor (Emphasis added.) plaintiff.” of necessarily must, majority admits, as and loquitur applicable here that an rule is inference ipsa Despite all these defendants. arose as to negligence of majority holds that elicited under evidence admission, the may be Procedure considered Code Civil section 2055 of of negligence which arose dispel to and used of inference Eiskamp. to Dr. ignores holding, opinion of the In so author rule set forth in the of impact of the case Crowe the full 727], he, 319 P.2d McBride, which v. [153 considering propriety court, for this said: “In speaking accept evidence most favorable we must nonsuit,

527 plaintiffs disregard that which is unfavorable. defendant, who testify was called to section 2055 the Code Procedure, Civil within this falls rule and is to he treated as evidence case as it insofar plaintiffs. (Anderson v. 42 Stump, Cal.App. favorable Dempsey 2d 761 1027]; P.2d Movers, Inc., v. Star House [109 2 Cal.App 825]; People .2d 720 P.2d v. Mahoney, 13 [38 cf. 729 P.2d directed verdict]; [91 [motion 1029] ” Co., Smellie v. 212 540 Southern Cal. P. [299 Pacific (Emphasis added.) again has been said time time rule appeal on judgments well established that from plaintiff right rely nonsuit, has portions defendants’ elicited under 2055 Code of Civil Procedure as are to her dis favorable regard portions (Code Proc., Civ. unfavorable thereof. 2055; v. McBride, supra; Crowe Karstensen § v. Western Transp. Co., Cal.App.2d 93 ; 435 P.2d v. Williams [209 47] Freeman, Cal.App.2d 35 104 817]; P.2d Young v. Bank [94 Cal.App.2d 95 America, 725 P.2d 16 A.L.R.2d [214 of 1155]; Cal.App.2d Connors v. Southern Pac. 91 Co., 872 [206 P.2d 31]; Uarte, Cal.App.2d 75, Green v. 87 63]; 77 P.2d [196 Carlton Co., v. 110 Cal.App.2d Coast Gasoline 177 Pacific 391]; P.2d Valenti, Cal.App.2d Marino v. 118 830 [242 [259 Lopez ; P.2d 121 Knight, Cal.App.2d 387 P.2d 84] [263 452]; Bright Co., Cal.App. Sales Co. v. Fred 119 R. Refinite 2d 56 1116]; P.2d Hull, Cal.App.2d Estate 63 135 [258 242]; Cal.App.2d P.2d Burns, Estate [146 77]; Hiner Olson, 73 P.2d 20 Cal.App.2d Whicker v. Auto Co., Crescent Lances, Estate Cal. ; Cal.App. Co., Lewis Southern Edison 768] Calif. 419], mention.) and others too numerous to “squarely We now are told that it has been held that an completely relies dis- pelled given as matter of law witnesses (Crouch Ltd., called under section 2055. Oil Gilmore ^[330] 709].)” Co., Ltd., appeal In Crouch supra, Oil Gilmore of judgment sought nonsuit Plaintiff there was involved. by testimony agency establish the issue of defendant’s ques- proved under 2055. that the truck in section Plaintiff by tion, in construction from that used while different Gilmore used Company, painted by Oil Oil with the colors was Gilmore by 4,500 it and of operators its service station on the Pacific painted Gilmore Oil also of Coast. the sides the truck with placed insignia the word its advertising “Gilmore” of the lion’s on head the rear of the truck. On the doors of the were, however, painted Valley truck the words “Owens Oil Company.” Smith, truck, Gilmore Oil sold the owner of the gasoline price. Testimony its at lower elicited under section by Smith, the paid showed that the driver of truck was held, specifically authority The court on the owner. the of Maupin Cal.App. 198], P. that the Solomon, agency testimony was rebutted uncontradicted 2055. given under section

Maupin Solomon, appeal judg- an from a supra, involved merits, after a trial on the and the ment an driver of de- held, merely, that inference that the court acting scope employment car was within the his fendant’s face uncontradicted evidence to the not stand could contrary. Testimony under section was not adduced appeal it either a nonsuit and was not involved verdict. directed incorrectly was de my opinion Crouch case It is sufficiently agency issue of was evidence cided. jury. question of for the Plaintiff to make it a fact conflicting which not bound was arising from facts contrary to the inference above was how Furthermore, I do not see Mr. Chief Justice forth. set view of cite, approval, Crouch case with can Gibson McBride, 25 Cal.2d opinion Crowe his speaking for “In said, in the court: he 727],* wherein accept must nonsuit, we propriety considering the plaintiffs disregard most favorable defendant, who was unfavorable. Code Civil testify under section called and is to be treated as evi this rule within Proced/wre, falls plaintiffs.” it is case dence insofar favorable the Crouch case appear It would added.) (Emphasis v. Mc purposes for all Crowe effectively overruled both many reasoned cases other better and the Bride, supra, analysis In Crowe subsequent thereto. prior majority opinion con author supra, McBride, case of Sherwin Burr any mention veniently omits 1041], where- 682, Williams though inconsistent. is not he maintains *Even

529 course, settled, is of court, “It the said speaking for he, inference, presumption, not a ipsa raises an loquitur res that particular inference a general that whether rule is and the question of be drawn is a for the jury, shall fact even contrary. (See of evidence to the Proc., absence Code Civ. Blank 20 1958; Coffin, 868]; v. 461 P.2d § [126 Ry. Hamilton v. Elec. 12 Co., 602-603 [86 Pacific 829].) This, however, preclude not does the conclusion ipsa may give loquitur special that res rise to a kind in of rebut, which the although must the defendant ference effect the is somewhat akin to that a presumption.” inference of (Emphasis added.) Also in his distinguish endeavor Crowe v. McBride (to from the case the detriment case Crouch of the Crowe majority opinion case), the author of the that informs us quotation “must, from of course, the Crowe case be read light question presented the facts case and the general proposition, for determination. It as a correct given interpretation it should not be strained reach not presented by a conclusion on a matter to or considered grossly the court.” This statement inaccurate. Crowe malpractice; McBride involved an action for chiro- defendant practor’s granted. appeal motion for a nonsuit was The was granting order the nonsuit. Defendant’s 2055 in the case was treated as evidence insofar plaintiffs judgment we reversed favorable therefore, necessary give not was, language nonsuit. ‘‘ interpretation there to reach conclusion on used strained by the not to or considered court.” presented a matter much of the that majority opinion makes fact loquitur ipsa raises an inference rather than doctrine res may presumption dispelled presumption and that a be party, an an in produced adverse whereas dispelled. In be so Burr Sherwin Williams ference specifically supra, opinion of this held that author Co., loquitur “special rise to a kind ipsa gave the doctrine must rebut and that inference” which defendant “somewhat akin to particular inference was effect presumption”! of a bar, always at been has, the case state until The law this evidence elicited under for a all a motion nonsuit plaintiff must unfavorable to 2055 which is section Cal.App.2d 87 75 (Green v. Uarte, disregarded. Holding Jeppi v. Brockman 63]; 847, 9 1297]; A.L.R.2d Transp. Co., Karstensen Western Cal.App.2d P.2d 47]; Young America, v. Bank Cal.App.2d 1155]; A.L.R.2d Re Sales Bright Co., Cal.App.2d Co. Fred R. finite Caslavka, Batchelor v. mention.) and others too numerous to only case upon by proposition relied dispelled as a matter law testi mony taken under 2055 is the case of Crouch Co., 709], Gilmore Oil Ltd., ipsa loquitur Crouch case res did not involve the inference of which is an inference of a that is “akin to that a character presumption” but defendant truck an inference that involved agent Company. driver the Oil Gilmore appears majority opinion It to me the that thoroughly has ignores confused the issue. It cases where the inference of ipsa loquitur res was involved the holding therein that 2055, taken as it is insofar favorable to plaintiffs, remains in the until case rebutted the de- ; it ignores fendant the time-honored rule appeal where an judgment from a involved; of nonsuit is it misleading makes statements and cites in support cases thereof which are not point. in example, As another the in statement the opinion applicable that “The same test determining is ipsa loquitur when the dispelled inference is as a matter deciding as conclusively law in when other inference is (See Melody rebutted. Lane, Rose v. 39 Cal.2d Leet Union Pac. R. R. 25 Cal.2d ” 621-622 158 A.L.R. This follows the statement contention that the inference of res ipsa loquitur dispelled was not as a matter of law and that granting therefore the the court erred motion a nonsuit. Both appeals the Rose from judgments and Leet cases were a rendered trial on the merits. Neither one involved after appeal judgment an from a of nonsuit. Then the author of majority opinion is, the makes “There this statement: how- ever, qualification general broad rule rule on [the appeal It that where a nonsuit is is settled where involved]. exists, the raises an inference that a fact and either evidence produces of the fact party evidence of the nonexistence of such a nature clear, positive, is uncontradicted and rationally disbelieved, nonexistence cannot (See Coffin, matter law. Blank v. the fact is established as a Coffin, 868].)” In Blank v. 461 was reversed verdict a directed appeal supra, always possible for not held: “It is It was there this court. bearing directly to introduce evidence to a lawsuit party prove. attempting to that he is of a fact upon the existence only establish him serve available The evidence logically are con- primary facts that certain existence of reasonably jury infer If can material fact. nected with exists, the material fact primary facts that from these to have to entitle him evidence introduced sufficient party has to draw jury compelled is jury decide the issue. contrary evi- however, even in the absence inference, in- particular so. Whether refuse to do dence and question is a from certain evidence be drawn ference can any given drawn, inference shall be law, whether the but (See cases cited jury. case, question of fact is a 738-739, 60.) 10 Cal.Jur. § opposing party

“Usually, introduces evidence as to the in issue, of the fact jury nonexistence must then existence nonexistence of determine the from all fact If the contrary before it. evidence to the exist clear, positive, uncontradieted, ence of the fact and of not rationally disbelieved, such a nature that it can jury court must instruct the nonexistence of the fact ” quite apparent has been established a matter law. proposition does not stand for the that Blank v. for Coffin quotation which it cited. The Blank continues thus: “The judge credibility jury, however, of the is the sole wit in (Cal. Proc., 1847; Code see cases cited 27 nesses Civ. § 182, 156) though and is free to disbelieve them Cal.Jur. even § they any ground there is rational are uncontradieted if for ques incidentally, doing ease, so.” The Blank involved the jury proper tion of it was the to draw whether not being automobile was driven the inference that employee permission of his at the time of the the owner with in Blank majority A of case held accident. the court improper because there was the directed verdict was jury to permit “to infer that the car sufficient evidence permission.” Engstrom being driven with defendant’s 1059], 64 P.2d Corp., v. Auburn Auto. Cal.2d Sales Co., Ltd., supra, and Oil Ceranski Crouch Gilmore 750], were all cases Muensch, Cal.App.2d 751 [141 ownership. Johnston v. Black involving the inference of 921], involved the inference of had where the trial court ipsa loquitur and a situation directed a verdict for the ground defendant on the of in- sufficiency of the jury evidence after the had returned a ver- dict for plaintiff. in the defendants, case, Johnston had introduced evidence at the trial dispelled which the in- (see pages ference 368). None cases, these with of exception case, Grouch involved elicited of under section 2055 the Code Civil Procedure. The Crouch case has been discussed heretofore. proved

Plaintiff here injury has her and defendants’ causal therewith, connection and that of negligence re undispelled mains until showing an “affirmative of a definite cause for accident, in negli which cause no element of gence part on the of the defendant adheres” is made. There here, therefore, proof no failure of inas the Crouch case. by any Plaintiff is not any bound adverse de fendant gone jury called under 2055. Had the case to the it Eiskamp may Kelly was free to believe that Dr. used have clamp; did, time, during surgery, that he at some work upper quadrant plaintiff’s abdomen; or that clamp had, during six months remained in abdomen, way position in worked its to the which it was negligence . found. “. . the inference which is created ipsa loquitur the rule res is in itself evidence which jury disregarded by not be absence any to negligence, other evidence as necessitates a verdict (Ales Ry plaintiff.” an, favor Cal.2d against Plaintiff here had made out her case by proving raised an inference of all defendants facts which negligence the case as evidence until dis which remained pelled the defendants. following opinion: is made in the statement may, course, be disbelieved if there is

“A witness ground doing so, party, rational and the interest of a justify would in the trier of fact some circumstances disregarding testimony. (See Hamilton v. Abadjian, not involved]; Cal.2d 53 [179 804] 659-661 [nonsuit Hicks v. Reis, 788] [non- suit involved]; Coffin, Blank v. 461-462 [126 ” defendant].) directed verdict for 868] [reversal is, elementary of course, that the trier of on may, fact trial case, any disbelieve testimony. witness or his We are (and here concerned with testimony a nonsuit taken under 2055) all plaintiff’s where evidence and the to be drawn must be taken as true and inferences therefrom

533 Any disregarded! be evi- must all the evidence conflicts Eiskamp to the effect Dr. under section 2055 dence elicited Kelly clamp was later operate in field where the did not merely other evidence a conflict with found creates may be inferred and negligence which the of his cases, disregarded. under heretofore cited must, majority following opinion from the The statement totally where, appeal judgment from a irrelevant as here, involved; situations, where however, nonsuit is “There are party obtaining judgment to interest favorable testimony subject to himself will not all of his dis render testimony example, part belief. For where a defendant’s to codefendant, is harmful him but favorable where or tends show that the witness is liable makes it more for por difficult him to establish own fault, lack testimony may tion of his used to rebut an inference provided nothing unfavorable to the codefendant there is indicate collusion disbelieving or other reason for testimony.” question testimony does of disbelief of enter into the case awhen motion a nonsuit is made. The defendant, in making motion, admits that all plaintiff’s (People case is true. Sedan, v. One 1940 Buick Cal.App.2d 71 160 P.2d ; Smith, Cal.App.2d 86 [162 339 318] [194 Seaford ; P.2d Mastro v. Kennedy, Cal.App.2d P.2d 792] [134 865]; Belt, Moore v. 34 Cal.2d 525 ; Connors [212 509] Co., Cal.App.2d Southern Pac. ; 31] Karstensen v. Transp. Co., Cal.App.2d Western 435 Carlton v. Coast Cal.App. Gasoline Pacific 2d Baley ; v. J. F. Hink & Son, 133 Cal. 391] App.2d 102 P.2d 349]; New Zealand Ins. Co. Brown, Cal.App.2d deAryan Butler, ‘‘ opinion states: The evidence as to Eiskamp’s participation operation consisted of the Slegal Lacy, and Eiskamp, and it was clear and uncontradicted to the effect that Eiskamp responsible was not leaving clamp abdomen. This did not any way tend to Lacy Slegal benefit but, contrary, was disadvantageous to them because the exoneration of one defendant would necessary have the of increasing effect possibility liability part of each of the other de- fendants. The record no ground indicates rational for dis- belieidng their testimony, and we hold that raised against Eiskamp under ipsa the doctrine of loquitur added.) The lack dispelled (Emphasis matter law.” as a foregoing argument of, the logic and the nnsonndness in, to the unin- apparent most it be

is so that should obvious majority that the the favorable by conceded formed. It is negli- inference of gave rise to an testimony this portion of by the plaintiff not bound Eiskamp. If is gence against Dr. Slegal testimony Lacy, of Drs. portion unfavorable testimony can it be said that such Eiskamp, and how can the Eiskamp to rebut inference upon by be now relied Dr. testimony of these the negligence which as a result of arose majority that the plaintiff? I submit favorable witnesses by except so it do question has not and cannot answered against arbitrary ipse “that the inference raised its dixit ipsa loquitur dispelled of res Eiskamp under the doctrine aas matter of law.” theory majority the upon which legal

The essence of following from holding statement is based is contained what has been said majority opinion: “It follows from testimony plaintiff that of a called witness dispel an inference which section 2055 be used to provided positive, relies, clear, evidence is rationally nature it cannot and of uncontradicted particularly appropriate It is allow such disbelieved. like rebut the inference cases used to present plaintiff, was unconscious one where because she injuries, receiving while in her treatment resulted ipsa given loquitur, is for res the benefit a liberalized test body all who control her or the in- persons had over injuries re- might which have caused her are strumentalities by giving quired negligence to meet the inference of explanation of their If in conduct. these circumstances evidence given as by witnesses under section 2055 establishes a matter law negligence, that one of the defendants is from free prima against facie ease that defendant on the inference based plaintiff’s position respect should to that defend- fall, with prove ant should be the same as if she had failed to all necessary facts to raise the inference.” impossible foregoing It is for me to rationalize the state- requires application ment it of a brand of mental as gymnastics possess. I I think means do not What Slegal is Eiskamp, this: While the of Drs. Lacy, negli- taken under section established an inference of gence ipsa against Eiskamp loquitur under the of res doctrine which, authorities, under the remains in the case until rebutted testimony negatives any this same defendants, negligence against Eiskamp. brain This child is labelled majority ipsa “a loquitur.’’ liberalized test res reactionary It more than liberal me. It sounds is obvious want to do here to destroy that what is ipsa of both 2055 and the loquitur remedial effect accomplishing by declaring this result doctrine. evidence—testimony certain here—“establishes as a matter negligence” of law that defendant free notwith- standing an of negligence the law has established inference product of against thinking? him. Is this the rational Can legal reasoning so obtuse? be Should conflicts exist in My questions emphatic our law? answer to these is an NO. judicial difficulty is, process The real failure majority here desires to reach a function. result which application legal principles. cannot be reached So sophistry it it resorts becomes enmeshed in a maze judicial process operates in conflicts. The reverse order. premise from the proceeds judgment It that we have a which validity To is under attack. determine of this judgment, apply legal accept we tests—rules law—and we the result process. pursuit from which flows this In of this process, we smoothly conflicts and the law a avoid becomes operating geared justice. machine to the efficient administration of Applying judicial process to this we ease, find that under section as construed all of the authorities, may plaintiff her establish case of adverse being she do this witnesses; by any without bound testi- mony her. unfavorable to far as So her case in concerned, chief is all unfavorable to her must disregarded the if same as it were not in the record. The testimony favorable to her establishes negli- inference of gence against all defendants. She rest her case on such evidence, against secure a motion for a nonsuit. judgment against of nonsuit her was therefore erroneous and should be always reversed. This has been the law of this state since section 2055 was enacted and would still be the if law the judicial process was followed in this ease. just

It would be honest, do less harm to the law, if the in majority, order to reach the result desires, would negligence hold that no inference of against arose Dr. Eiskamp undisputed because the evidence shows that he did not Kelly clamp portion use in operation of performed he abdomen. join While I could not in such holding, necessary to show that it is my opinion it is negligent participant active was an a defendant complained of in order injury act which resulted against such defendant negligence an inference establish holding This was the doctrine. ipsa loquitur under the res 915], Cal.2d 811 Haas, 45 of this court Seneris Haas in favor of Dr. was affirmed. of nonsuit judgment where the evidence here expressly holds that under majority But the against Eiskamp and I negligence arose Dr. an inference state, law of holding. appears to be the agree with this can particular inference be drawn whether a however, that but question of whether law, evidence is a certain any given ease, question is a drawn, shall (See 738-739, cited in 10 jury. fact for cases Cal.Jur. 60.) § obviously rule it be more foregoing In would view logical majority to conclude that the evidence negligence against produced no inference of arose Dr. here Eiskamp. holding would have least In so at support wholly authority its a semblance otherwise unfounded conclusion. Ryan, 8 (Ales 82, 95, We held have leaving foreign object patient’s in a abdomen

409]) ordinarily negligence without in Ybarra does occur Spangard, 1258], 25 Cal.2d 486 162 A.L.R [154 patient injuries that when a receives unusual while unconsci- any ous, having body all defendants control over or the might injuries may instrumentalities which have caused upon to negligence by be called rebut the giving explanation of an their conduct. Nurse Pogatschnik, as employee of the one hospital, having was of the defendants ‘‘ ’’ body control plaintiff. over unconscious of the Plaintiff through testimony established Evelyn Craig, of Mrs. superintendent of defendant who under hospital, was called that 2055, section not practice hospital, was of the through its nurse employees, to make an instrument count surgery. after Whether such negli- an omission constituted gence adversely was answered hospital to defendant in Ales 82, 409], P.2d this court Ryan, 100 where 8 Cal.2d [64 upon authority already failure held that the said: have “We patient negli- of a sponge from abdomen to remove a type it does gence ordinary and that not involve of the surgery belongs medica but that it knowledge of materia frequently lapses mental occur in the usual class of

537 the multitude of commerce, and in of business and routine group ordinary- within the come commonplace affairs which no en- layman needs scientific negligence. The actionable accounted the omission can be to see at once that lightenment committed action- theory has on no than someone other although her Craig testified, also negligence.” Mrs. able testimony merely binding a con- plaintiff, not creates may that it evidence, ignored, flict hospitals community in the to make an instrument custom surgery. opinion of the after I am that the count failing to incorrectly discusses this as opinion negligence hospital to the “dispel” the inference as surgical Plaintiff is not bound testi- nurse. adverse mony 2055, pointed as I elicited have heretofore merely out. The custom created a conflict might in the evidence and be considered adverse to holding not for negligence if it were cases that “General ground cannot be excused on that others in the same ’’ locality practice the negligence. (Ales same kind of Ryan, 82, 8 100 Pauly Cal.2d P.2d was also said in [64 King, 44 487], quoting P.2d from Owen [284 Mfg. Co., Cal.App.2d v. Rheem 785], [187 “Custom assist in the determination of what constitutes due care. What do others is some evidence of what should done, but custom is never a substitute due care.” repeatedly

We have held hospital that a must exercise patient reasonable care towards a as his known condition (Wood require v. Samaritan Institution, Inc., Rice 556]; [161 Lutheran Hospital, 27 California Ault v. Ross Hospital, General Cal.App.2d 78, 80 528]). alleged “If neglect relates to matters or conduct reasonably which are within the ken average layman jury may determine culpability person of the charged therewith without the of experts. solely aid If it relates judgment the exercise of application of skill learning proof then negligence must be made experts.” (Valentin v. La Societe Francaise, Cal.App.2d 1, P.2d 359]; Dean Dyer, 646, 653 P.2d 288]; Stevenson Bates, Inc., v. Alta 20 Cal.App.2d 303, Inderbitzen v. Lane Hospital, Cal.App. 462 744, 13 appears It to me that the failure to make an instrument count subsequent to surgery is a matter “reason ably within the ken” of average the layman permit to jury, expert to determine whether evidence,

without the benefit or the failure negligence, or constituted not such failure patient as his known exercise such care towards a reasonable Francaise, La may require (Valentín condition Societe In- v. Samaritan Wood stitution, 556]). But, Inc., 851 [161 Kelly of the negligence having inference of arisen because during surgery clamp having left in been abdomen at a of her time when the defendants had control unconscious negligence existed was body, question whether such the trier of fact on a trial of issues involved. by plaintiff, together evidence with the favorable adduced conflicting therefrom, inferences to be drawn when permit is disregarded, was more than sufficient cause by jury, be tried court, as the case be. any impossible majority opinion It rationalize the theory logic. certainly support of law or It finds no prior appellate decisions of this court or the courts of this any legal philosophy state. In the absence basis in holding here, is obvious that considerations of ex- pediency have controlled. I submit that such considerations judicial foreign concept. are to the If the law to be changed, Legislature law-making is the body, change brought legislation by should be about and not judicial fiat. In our constitutional form of government, with system its Legislature cheeks balances, the is more responsive to people the will than the courts and change public policy or statutory originate law should with it. I submit the action of this court here invades province Legislature legisla- a most vital field tion public policy repeals as it provision or nullifies the in section 2055 of the Code party Civil Procedure that a is not by testimony hound elicited under this section.

I judgments would reverse of nonsuit as to defendants Pogatschnik Eiskamp, and the Community Watsonville Hos- pital. SHENK, J. I dissent. I am in agreement with the dis- senting opinion of Mr. Justice Carter insofar as he concludes opinion the majority has misapplied section 2055 of the Code of Civil Procedure and the doctrine of ipsa loquitur. is well established the authorities in state and cited Mr. Justice Carter that may, call the defendants as adverse witnesses and examination” if cross “as under and examine them plaintiff is not cause. The to his own prejudice without to him testimony. which is unfavorable That by that bound nonsuit, for a be dis- of a motion purposes for must, the strong persuasive or even conclusive however regarded, against plaintiff the of the defendants might inbe favor plaintiff to The is entitled on merits. the trial testimony portion of that is favorable benefit of whatever only is to be considered in evidence for portion him and that purpose plaintiff’s a nonsuit. For purpose by may all favorable inferences that supported case is drawn testimony. from Those inferences be in addition to ipsa loquitur included the doctrine inference the case to which alone is sufficient take trial on merits. question plaintiff when an favor of the by testimony dispelled of his own witnesses is not In involved in this case. law defendants, when called section plaintiff are not the wit- nesses. the rule With now announced plaintiff may not call a defendant examination under that except peril having at the so taken bim against and which is unfavorable to him used in support of a motion for a nonsuit. This is an unfortunate and con- fusing deviation the established rules. Under the au- ipsa loquitur thorities t.bls the res applicable doctrine is case and purpose its beneficial effectively destroyed if in calling the defendants as adverse plaintiff witnesses the must assume the of having hazard justify them their conduct and their own judgment obtain a of nonsuit. The record question shows without the testimony of the de- fendants obtained under section 2055 insofar as it is favorable to the is in support of the inference of negligence, and that inference has dispelled not been either in fact or in law. The defendant Eiskamp part took operation he required should be defend along merits with his codefendants. petition of respondents Watsonville Community Hos

pital Pogatschnik Kay rehearing was denied Janu ary 16, 1957.

Case Details

Case Name: Leonard v. Watsonville Community Hospital

Court Name: California Supreme Court

Date Published: Dec 21, 1956

Citation: 305 P.2d 36

Docket Number: S. F. 19485

Court Abbreviation: Cal.