Opinion
Hearing Granted Aug. 30, 1944.
Appeal from Superior Court, Los Angeles County; Myron Westover, Judge.
Action by H. H. Rannard and wife against Lockheed Aircraft Corporation and Z. P. King for damages for alleged malpractice by defendant last named while allegedly in employ of defendant first named. From the judgment and from an order denying plaintiffs’ motion for a new trial, plaintiffs appeal.
Judgment affirmed and appeal from order dismissed.
COUNSEL
A. G. VanDeventer, of Pasadena, for appellants.
George H. Moore, Hugh B. Rotchford, and Harold C. Tallmadge, all of Los Angeles, for respondent Lockheed Aircraft Corporation.
OPINION
SHINN, Justice.
Plaintiffs, husband and wife, appeal from a judgment on the pleadings in favor of Lockheed Aircraft Corporation, which was ordered at the commencement of the trial. The action is for damages for the alleged malpractice of one Z. P. King, a physician and surgeon who, it is alleged, was in the employ of defendant Lockheed for the purpose of giving physical examinations to persons who applied to Lockheed for employment and to render certain other professional services. It appears that the services of Dr. King were rendered to the husband and not the wife, and he will be referred to as plaintiff.
The complaint contained five separate statements of fact, each designated as a cause of action, which may be summarized as follows:
The first cause of action alleged that Lockheed "retained in its employ, as its agent and employee, the defendant Z. P. King in the normal conduct of, and in the furtherance of its interests in, the business in which said defendant Corporation was at all such times engaged"; that paintiff applied to Lockheed for employment and was found acceptable, subject to a physical examination "which was required to be, and was actually, made by said defendant Corporation and its agent, defendant Z. P. King"; that at the direction of Lockheed plaintiff was given a physical examination by defendants Lockheed and King, and that said defendants conducted said physical examination negligently, carelessly, and unskillfully; that as a direct and proximate consequence and result of said negligence plaintiffs and each of them have sustained, and will continue to sustain, "losses, damages, injuries, inconveniences, and hardships" consisting of physical pain and inconvenience, the necessity for surgical and medical treatment in the future, expenses of past medical care and treatment, loss of earnings, and loss of earning ability. The amount of the damages alleged to have been suffered by reason of said medical expense, etc., was specified.
The second cause of action incorporated the allegations of the first cause of action but elaborated upon the employee relationship of defendant King by alleging that Lockheed hired and retained King for the purpose of conducting physical examinations of applicants for employment, and in hiring and retaining him negligently failed to select "a medical and surgical attendant physician and surgeon, possessed of or capable of exercising that degree of care, skill, ability or learning possessed and exercised by medical and surgical attendants, physicians and surgeons practicing their profession in the locality of said defendant Lockheed Aircraft Corporation’s said principal office, but said defendant Lockheed Aircraft Corporation nevertheless held out said defendant Z. P. King to be so qualified and skilled."
The third cause of action incorporated the allegations of the first cause of action but elaborated upon the allegation as to the negligent physical examination and alleged that plaintiff at the direction of Lockheed submitted to such examination by the defendants and was thereupon negligently "advised by said defendants that as a condition precedent to the proposed employment of said plaintiff, H. H. Rannard, by said defendant, Lockheed Aircraft Corporation, it would be necessary for said plaintiff to undergo and submit to an operation designed to correct a purported ‘double hernia’ purportedly found in said plaintiff; said plaintiff did thereupon, with the full acquiescence, knowledge and consent of defendant Lockheed Aircraft Corporation consent to the operation so advised, and did, on the 2nd day of November, 1941, at the direction of defendants, submit to, and undergo the said advised operation; that said operation was performed upon said plaintiff by said defendant Z. P. King in a negligent, careless, and unskillful manner" and that in advising said operation and in performing it, "defendant Z. P. King at all times acted as the agent and employee of defendant Lockheed Aircraft Corporation and such acts of defendant Z. P. King were, and each of them was, done in the scope of, and as a routine and regular part of, the usual employment and services rendered by said defendant Z. P. King to defendant Lockheed Aircraft Corporation."
The fourth cause of action was against King only and was held to state a cause of action against him.
The fifth cause of action incorporated the substance of the first cause of action, but it alleged that the diagnosis made in the examination for employment was of a double hernia and that plaintiff was operated on for that condition by defendant King. The allegations of the third cause of action with reference to the operation and Lockheed’s connection with it were incorporated by reference. It was further alleged that after the operation defendant King discontinued his employment with Lockheed but that he continued to treat and take care of plaintiff following the operation, that he did so negligently, and "that defendant Lockheed Aircraft Corporation participated in and took an active part in said negligent, careless and unskillful subsequent treatment and care, and thereby ratified and adopted and constituted as the act of said last named defendant and of its agent, defendant Z. P. King, the said negligent, careless and unskillful subsequent treatment and care." The defendants answered separately without demurring to the complaint.
The fifth cause of action was broader than any of the others and is the only one we need to consider. If it was insufficient, no cause of action was stated against Lockheed and the judgment should be affirmed.
A transcript of the argument upon the motion has been added to the record on appeal by stipulation. It was furnished for the purpose of resolving a disagreement between counsel as to whether plaintiff had sought leave to amend. We have read it and find that plaintiff did offer to amend in one particular but declined to amend in others in which the complaint was patently inadequate. The insufficiency which we regard as determinative is that no facts were alleged to show what Dr. King did or failed to do in the diagnosis or the operation, or to show a connection between the alleged negligence of the defendants and the injuries which plaintiff claims to have suffered.
It was not alleged that plaintiff did not have a double hernia, or that an operation was not necessary to correct it, or that a hernia condition was not corrected. The court could not assume the existence of such material facts, when no attempt was made to allege them, and the omission was evidently intentional. No facts were alleged as to plaintiff’s condition following the operation nor any facts from which it would appear that his condition differed from what it would have been if the operation had been performed with care and skill. There was only the naked allegation that certain damages had been sustained by reason of the alleged negligence of the defendants. No facts were stated as to what Dr. King did or failed to do which caused the undescribed condition from which the alleged damages resulted. A complaint must state the facts which constitute the plaintiff’s cause of action; more conclusions which do not give even a clue as to the facts which the defendant will be called upon to meet are not sufficient. A complaint against a surgeon which alleges that he operated upon the plaintiff carelessly and unskillfully, and that as the proximate result of the negligence the plaintiff has been disabled and has lost the ability to work, does not state a cause of action. There must be a factual statement as to what the defendant did or failed to do and as to the connection between the alleged negligence and the alleged results of it in the pleading as well as in the proof. If a man should sue another, alleging that he had been rendered an invalid by the negligent firing of a gun, or the driving of an automobile, the defendant would be entitled to know whether he was charged with having struck the plaintiff or only frightened him.
In Smith v. Buttner, 1891, 90 Cal. 95, 27 P. 29, a complaint was held defective which alleged that the plaintiff fell when she was endeavoring to descend from a house to the ground, "by reason of the negligence and failure of defendant to provide safe, suitable, or proper means of exit from said house." The court said (90 Cal. at pages 99, 100, 27 P. at page 29): "It is well settled that negligence may be charged in general terms; that is, what was done being stated, it is sufficient to say it was negligently done, without stating the particular omission which rendered the act negligent. But it must appear from the facts averred that the negligence caused or contributed to the injury. To illustrate: Suppose a plaintiff injured by the falling of a sign negligently and insecurely fastened by defendant. It would not suffice for him to allege the negligence in hanging the sign; that plaintiff, in lawfully and without negligence passing under it, was thrown down and injured through such negligence. This would be a mere assertion of the cause. It would be necessary to show that the sign fell upon him in consequence of such negligence, thereby causing his injury." In Cary v. Los Angeles R. Co., 1910, 157 Cal. 599, 602, 108 P. 682, 684, 27 L.R.A.,N.S., 764, 21 Ann.Cas. 1329, this statement appears: "While it is permissible to charge negligence in general terms, it is nevertheless necessary to specify the particular act or acts alleged to have been negligently done [citing] Stephenson v. Southern P. Co. [1894], 102 Cal. 143, 34 P. 618, 36 P. 407; Smith v. Buttner, [supra]." See also Crabbe v. Mammoth Channel G. Min. Co., 1914, 168 Cal. 500, 505, 143 P. 714. In Rathbun v. White, 1910, 157 Cal. 248, at page 254, 107 P. 309, at page 311, it was said: "It is sufficient, under the rule well settled in this state, to charge negligence by the general averment that the defendant negligently did the particular act which resulted in damage to plaintiff." (Italics added.) See also Grossetti v. Sweasey, 1917, 176 Cal. 793, 795, 169 P. 687. In Lang v. Lilley & Thurston Co., 1912, 20 Cal.App. 264, 265, 128 P. 1031, the complaint alleged that plaintiff was injured by the negligent operation of an elevator by defendant’s employee, without the statement of any facts as to the manner in which it was operated. In affirming a judgment after demurrer sustained, the court said (20 Cal.App. at page 266, 128 P. at page 1031): "The ruling was justifiable for the reason that there was a failure to specify the particular act or acts of negligence which proximately caused the accident. It is not sufficient to allege that the elevator was negligently operated and thereby the injury was produced. Defendants should have been informed, by appropriate allegation, in what respect the contrivance was negligently operated, and it should have appeared that the recited facts had a causal connection with the death of plaintiff’s intestate. We are left entirely to surmise whether the elevator was moved too suddenly or too rapidly or too far or without warning, or, in other words, what particular act was negligently performed. If the case were tried on the pleadings as it stands it is evident that additional facts to those alleged would have to be proved in order for plaintiff to recover." The insufficiency of the complaint before us is emphasized by comparing it with a good allegation of the particular act which caused injury found in McGehee v. Schiffman, 1906, 4 Cal.App. 50, 51, 53, 87 P. 290, where it was alleged that the defendant, in extracting several of plaintiff’s teeth, negligently dropped one of them into plaintiff’s lung. This fundamental rule of pleading has been repeatedly adhered to in the later cases. In Dunn v. Dufficy, 1924, 194 Cal. 383, 228 P. 1029, a malpractice case, the complaint contained specific allegations as to the acts and omissions in the surgery which resulted in the loss of use of one of plaintiff’s fingers. The discussion in which the Dunn complaint was distinguished from the one in Smith v. Buttner, supra, clearly points out what the court considered to be the essentials of a cause of action for malpractice, with reference to the causes of the condition resulting from the surgery. These essentials are wholly lacking in the present complaint and the trial court properly so ruled. Plaintiff cannot justly complain that he was not given an opportunity to supply them. The deficiencies of the complaint were specified and discussed fully and the argument of the defendants was complete enough to have supported a special demurrer for uncertainty. It was repeatedly pointed out that there were no allegations as to what plaintiff’s condition was prior to the accident, or what the doctor did, or failed to do, in the operation, or what condition was produced by the operation.
Plaintiff’s attorney stated that he could amend by adding the allegations of the second cause of action to his third and fifth causes of action, so as to charge Lockheed with negligence in the employment of the doctor, but that he could make no further amendment. The court then said: "I have said I would tentatively deny a judgment on the pleadings if you wanted to amend. If you feel that you cannot amend, then I would give a judgment on the pleadings, if you cannot state a case." The court stated a willingness to give "10, 15 or 20 days, whatever time you want," for amendment, with the understanding that if no amendment were presented a ruling would then be made on the motion for judgment on the pleadings. Plaintiff’s counsel then said: "I will state that I am not going to amend * * * and I will ask the court at this time to resolve the motion for judgment on the pleadings in favor of the defendants, both defendants." The reporter’s transcript shows that the motions of both defendants for judgment on the pleadings were granted. The clerk’s minutes show that Lockheed’s motion was granted as to all causes of action and that defendant King’s motion was granted as to the first, second and third causes of action, but it was denied as to the fourth and fifth with leave to amend these causes of action within ten days. In view of plaintiff’s election not to amend in particulars we have pointed out, the complaint must be deemed to have stated plaintiff’s case against Lockheed as strongly as the facts would justify.
The further contention is made that plaintiff offered to amend, as we have already stated, and it is apparently claimed that his counsel understood that the complaint was considered as having been amended by adding the allegations of the second cause of action to the third and fifth causes of action. It is difficult to determine this point from the record, but we are inclined to believe that the court considered the complaint as if this amendment had been made. That fact does not bear upon the grounds of our decision that no cause of action was stated. Negligence of Lockheed in the employment of Dr. King, if it had been alleged in each cause of action, would have tended in no way to supply facts with reference to the allegedly negligent surgery of Dr. King and its consequences.
The attempted appeal from the order denying plaintiff’s motion for a new trial is dismissed. The judgment is affirmed.
DESMOND, P. J., and FOX, Justice pro tem., concur.