Pike v. Archibald

MUSSELL, J.

A general demurrer to plaintiff’s complaint, in an action for wrongful death, was sustained without leave to amend and plaintiff appeals from the judgment which followed.

The principal question involved is whether the complaint filed May 8, 1952, states a cause of action. It is alleged therein, in substance, that the defendants were physicians and surgeons practicing in Bakersfield, holding themselves out to plaintiff and the public generally as being skilled in said profession and competent to perform such services as are usually and generally performed by physicians and surgeons; that plaintiff presented his minor son to defendants for medical treatment and the defendants undertook to render medical attention to said child, who had swallowed an unknown quantity of oil of wintergreen or other foreign substance; that the child was taken home after the first treatment and soon thereafter appeared to be in great pain; that the boy was then returned to defendants, at their request, for further treatment; that the following morning plaintiff was notified that his child had taken “a turn for the worse,” and on arrival from his home, plaintiff was advised of the prior death of the child. It is then alleged on information and belief that the defendants failed and refused to take the prompt, necessary, usual and emergency medical steps which would have saved the life of his child and that his death was proximately caused by their said carelessness, inattentiveness and negligence; that as a result of the carelessness, inattentiveness and negligence of the defendants, plaintiff was damaged in the sum of $50,000.

This complaint states a cause of action for negligence against the general demurrer

(Davie

v.

Regents of University of Cal.,

66 Cal.App. 689, 692 [227 P. 247]) and it was error to sustain the demurrer without leave to amend unless it can be

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held that plaintiff is bound by the allegations of his complaint in a prior action filed in the same superior court. This prior action, filed in November, 1951, was against the county of Kern and others and defendant Herbert Lee Archibald was served as John Doe One. Plaintiff alleged therein that the John Doe defendants were agents and employees of the county of Kern and acting within the scope of their employment as doctors, nurses and attendants at the Kern County general hospital; that plaintiff presented his minor son to the emergency receiving room of the said hospital, specifically requesting the nurses and doctors therein to render medical attention to the said child; that the child had accidentally swallowed an unknown quantity of oil of wintergreen or other foreign substance; that in response to plaintiff’s request, said doctors undertook to and did render medical attention to said child and that the child died while in said hospital. It was further alleged upon information and belief that the said hospital and said doctors failed and refused to take prompt and necessary medical steps which would have saved the life of the child; that his death was proximately caused by the carelessness and negligence of said doctors and nurses and as a result of the carelessness, inattentiveness and negligence of said hospital and said doctors, both as individuals and acting as agents and employees of the county, plaintiff was damaged in the sum of $50,000; that a claim was filed against the county and by it rejected. There are no allegations in said complaint that a claim was presented to or filed with the defendant doctors. A general demurrer by the county was sustained to this complaint without leave to amend and a judgment was entered that plaintiff take nothing by his complaint against the county of Kern. This judgment was filed in said court on December 24, 1951. On March 17, 1952, Herbert Lee Archibald, one of the defendants therein, filed a general demurrer and plaintiff thereupon, on March 28, 1952, dismissed the action.