Tyree v. Epstein

[362]

SHINN, P. J.

Plaintiff ified his complaint for damages alleging that he had sustained injuries in an automoMle accident July 22, 1947, for which the city of Los Angeles was liable and that he had recovered a judgment against the city for $22,500 which has not been paid; that following Ms accident he was attended in the Los Angeles County General Hospital by Herman E. Epstein, a licensed physician and surgeon, defendant in the present action; that the defendant was guilty of specified acts of malpractice; that he fraudulently concealed from plaintiff the extent of plaintiff’s injuries, representing them to be merely temporary and that he also concealed the alleged acts of malpractice. Defendant demurred to the complaint and made a motion to strike certain portions thereof. One of the grounds of the demurrer was that the action was barred by the statute of limitations. The motion to strike was addressed to the allegations of the complaint with relation to discovery of the alleged malpractice and fraud. The ground of the motion was that the allegations were false. The motion was based upon the affidavit of defendant’s attorney which purported to set forth allegations contained in plaintiff’s complaint against the city with relation to his knowledge of his injuries which were claimed to be in conflict with the allegations of his complaint in the present action with reference to discovery. The affidavit further stated on information and belief that plaintiff had given his deposition in the suit against the city in which he testified concerning his injuries and submitted his injured arm for examination. In addition there was attached to the affidavit the hospital report of the operation on plaintiff’s arm which was performed February 14, 1948, in wMch it appeared that defendant Epstein had assisted to some extent. The demurrer and motion were argued. The demurrer was sustained without leave to amend and the motion was ordered off calendar. The record indicates that only those portions of the affidavit which related to the hospital records and the alleged contradictory allegations in the complaint in the former action were considered by the court. After the demurrer was sustained without leave to amend judgment was entered in favor of defendant. It recites that it was stipulated that the specified portions of the affidavit of defendant’s attorney should be deemed added to plaintiff’s complaint as an amendment in ruling upon the motion and the demurrer. The briefs on the appeal are devoted in large extent to a discussion of the significance of the additional facts which