Cumming v. Auriemma

[209]

CRAIL, J.

This is an appeal by plaintiff from a judgment in favor of the defendant, a physician, in an action for damages for malpractice. The plaintiff alleged in his complaint that his right eye was injured in an industrial accident; that upon direction of his employer he took treatment for his injury from the defendant; that the defendant was guilty of malpractice in his treatment of the plaintiff resulting in the loss of plaintiff’s eye. The defendant, by way of answer, denied the allegations of the complaint and alleged contributory negligence. On the morning of the trial and after both sides had answered ready, the defendant filed an amendment to his answer in which he alleged as a second defense that the plaintiff, under and by virtue of the California Workmen’s Compensation Act, had applied for and received full workmen’s compensation for his injuries and all the proximate consequences thereof including injuries for which recovery was being sought in this action, and that under the terms of that act the trial court was divested of jurisdiction over the subject-matter of the action. The defendant then suggested that plaintiff stipulate to the facts set up in the amendment and that the issue of law raised therein be presented to the court before proceeding further with the trial and expressly stated that such procedure might save considerable time. To this the plaintiff consented and the court excused the jury for the purpose of hearing argument. The argument lasted two days, and the court then indicated that it would rule in favor of the defendant that it was without jurisdiction over the subject-matter of the action and dismiss it, but it did not do so. Thereafter the plaintiff by leave of court and stipulation of the defendant demurred generally to the said amendment to the answer. The court overruled the demurrer.

It will be remembered that the facts set forth in the second defense were admitted. Under the circumstances a trial court would have ordinarily entered a judgment of dismissal for lack of jurisdiction, but in this ease the court requested plaintiff to proceed with his evidence or to rest his case. The plaintiff declined to introduce his evidence upon the ground then stated, that to try the issues of fact was useless procedure where the outcome of the case had already been decided by the court on an issue of law. The court