244 Cal. App. 2d 366 | Cal. Ct. App. | 1966
Plaintiff appeals from a judgment following the sustaining of a demurrer without leave to amend, and from an order denying his application for temporary injunction.
. The allegations of the complaint were sufficiently supported by affidavits of a medical doctor and of Martin’s attorney.
Martin’s allegations and supporting documents were countered only inferentially by references in Martin’s medical expert’s reports to the opinions of Noble’s medical attendants.
Martin’s argument, based upon the foregoing, is that if the operation were to become a fait accompli before trial, he might be charged with the cost and consequential damages of the operation, even should it be unnecessary and ill-advised.
Conclusion
The proposed operation was advised, on medical grounds, by the attending physician of the person sought to be enjoined, who was of legal age and otherwise free from legal disability. The operation was of a kind that it was not illegal to perform. Martin’s interest was that of a litigant against whom, if his liability should be fixed, damages might be assessed for the cost of the operation and its possibly harmful results only if in the principal action the operation should be found to have been necessary.
In such circumstances a court of equity is without
The court in the principal action was vested with whatever jurisdiction existed in the premises. (Code Civ. Proc., § 187.)
The questions of the necessity of the operation, the reasonableness of the costs thereof, and of all other elements of damages in connection therewith, were to be determined in the trial of that action. The preservation and production of evidence as to those matters were subject to regulation in that action.
Thus, under its power to control its calendar, the court could grant continuances of trial to permit a determination of the results of the operation, or to exclude the possible prejudicial effects of having Noble appear in court until the fresh visible effects and temporary mechanical accompaniments of the post-operative process might be removed.
Defendant has filed a motion to dismiss the appeal. That motion is denied.
The judgment is affirmed.
Coughlin, Acting P. J., and Bray, J.,
Appellant’s petition for a hearing by the Supreme Court was denied October 14,1966.
We refrain from a sweeping declaration that a legal operation on a fully competent person might never be enjoined for financial reasons. Conceivably, if a person such as Jimmy Durante were under contract that provided that his nose should not be changed in shape or size, a court might give serious consideration to a suit to enjoin an operation for purely cosmetic reasons that would result in a breach of the contract.
Betired Presiding Justice of the District Court of Appeal sitting under assignment by the Chairman of the Judicial Council.