Larsson v. Cedars of Lebanon Hospital

SHINN, P. J.

This is an appeal by plaintiff from a judgment of dismissal following a determination by the court that the action was barred by the statute of limitations. The suit is against Cedars of Lebanon Hospital, Charles C. Manger Company, a corporation, and Dr. David L. Reeves, charging negligence and malpractice. It was alleged in the

[705]

fourth amended complaint that pursuant to award of the Industrial Accident Commission requiring Cedars of Lebanon Hospital to furnish plaintiff further medical or surgical treatment as might reasonably be necessary to cure or relieve from the effects of an injury theretofore suffered by her, defendant Reeves, as agent of the hospital, performed an operation upon plaintiff. This operation was performed July 25, 1940. It was also alleged that Charles C. Manger Company operated, a sanitarium as the agent of defendant hospital; that plaintiff was sent to the sanitarium September 24, 1940 and was discharged therefrom December 23, 1940. Dr. Reeves was accused of malpractice, the hospital company and the Manger Company with negligence in the treatment and care furnished plaintiff, her alleged injuries being set forth at length. No acts of negligence or malpractice were alleged as of a date subsequent to December 23, 1940. The fourth amended complaint was filed by B. W. Miller, as attorney for plaintiff. The present action was instituted by another attorney August 12, 1943, against Cedars of Lebanon Hospital and Dr. Reeves. The complaint alleged negligence in connection with the operation of July 25, 1940, but no facts were alleged which would have tolled the running of the statute of limitations during the more than three-year period between the date of the alleged negligence and the institution of the action. By subsequent amendments Manger Company was added as a defendant and in the fourth amended complaint it was alleged that on the 25th day of July, 1940, and continuously until the 9th day of August, 1943, plaintiff was of unsound mind and mentally incompetent, and that from on or about the 24th day of June, 1941, until the 9th day of August, 1943, was under the disability of an adjudication of ineompetency, and was an insane person within the meaning of section 352 of the Code of Civil Procedure. No other facts were alleged which would have affected the operation of the statute of limitations. The demurrer of the Manger Company to the fourth amended complaint was sustained without leave to amend and the action was dismissed as to it, but no appeal has been taken from that judgment. The action came on for trial December 9, 1947. Plaintiff was then represented by á third attorney, Neal B. Dow, but a mistrial resulted. Thereafter on motion of defendants it was ordered that a separate trial be had of the defense of the statute of limitations pleaded by all defendants and the defense of the Cedars of Lebanon