In an action for damages against a hospital, two nurses and a surgeon, in Ventura County, the jury were directed to return a verdict in favor оf the defendants, and the plaintiff appealed from the judgment.
From such argument in the briefs as is based upon evidence- appеaring in the record, as distinguished from statements of counsel, we assume that the contention as to its sufficiency to warrant submission of the еase to the jury is founded principally upon negligence in failing to examine an ether machine used during an operation, and the fact that the patient’s adenoids were removed after discovery that an excessive amount of ether had been administеred.
It appears without contradiction that the hospital corporation was established and conducted as a charitable institution; that appellant employed the surgeon who performed the operation, and made independent arrаngements for hospitalization. Witnesses for all of the parties were unanimous in their testimony that respondent Tillim did not furnish, assemble, inspect or prepare the ether machine for use; that it was the duty of the anaesthetist to superintend such work and to test the machinе before it was used, and that proper medical practice requires it of such attendant. Typical of the evidence in this respect is that of Dr. Thomas B. Cunnane, who swore: “I think the duties are completely separated. The surgeon is responsible for the operative work only,—the results of the operation; and the anaesthetist is responsible for the life of the patient so far аs the anaesthetic is concerned.”
As soon as the respondent doctor approached the table and observed an excessive flow of anaesthetic he removed the tube, applied restorative methods, and removed the patiеnt’s adenoids. Appellant’s own witness, an expert, when asked: “Dr. Bianchi, in your opinion, did the removal of the, adenoids after this unfortunatе incident assist the child or hurt the child at the time?” replied, “It may have assisted the child; . . . the removal of the adenoids might have helped to relieve the condition of the lungs.” There is nothing in the record which is indicated nor which we *378 have been able to find, to the contrary, оr tending in any way to charge respondent Tillim with negligence or with the commission of any act detrimental to the best interests of the pаtient. The cardinal rule that in an action for damages the burden of proof rests upon the plaintiff, as in other cases, requires nо- citation of authority.
The original answer of the respondent corporation is incorporated in appellant’s oрening brief. It is not made a part of the record, and must be disregarded.
(Gallatin Irr. Co.
v.
Bristol,
It is also contended that еvidence offered on behalf of the respondent corporation tending to show that it was a charitable institution, was contrаry to the provisions of its general articles of incorporation, and was erroneously admitted. Authorities involving various commerсial corporations are cited by appellant, but it is apparent from pertinent decisions that they have no application. This question was determined in
Stewart
v.
California Medical Missionary & Ben. Assn.,
It appears without contradiction that the hospital paid no compensation to its constituents for services, and
*379
that it paid no dividends; that it was conducted for the good of the community, by a charitable organization known as the Big Sisters League, with the intent and purpose that if there was a surplus over and above the expense of carrying it, such surplus would go to the said league. There is no evidence of a relaxation of reasonable diligence in the selection of attendants. As we have observed the respondent physician employed by appellant was not employed by the corporatiоn, and was not charged with supervision of its mechanical apparatus. We think the case is governed by rules announced in
Burdell
v.
St. Luke’s Hospital,
A trial court is invested with the authority and the duty to direct a verdict when there is no substantial conflict of evidence upon the essentials of the case.
(Estate of Sharon,
The judgment is affirmed.
Works, P. J., and Thompson (Ira F.), J., concurred.
*380 A petition for a rehearing of this cause was denied by the District Court of Appeal on September 26, 1931, and a petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on October 26, 1931.
Curtis, J., dissented.