Gonzi v. Superior Court

CARTER, J.

Mary Frances Gonzi, a minor, through her guardian

ad litem,

Melehio Gonzi, petitions for a writ of mandate to compel the Superior Court of the City and County of San Francisco to grant petitioner’s application to have a reporter present during a court-ordered physical examination by a doctor employed by the real parties in interest, Daily News Company et cetera, a corporation, and Fred J. Fleckin.

The petition for mandate, after alleging the appointment of the guardian

ad litem,

alleges that petitioner has a cause of action against the real parties in interest in that she sustained injuries as a result of the negligent operation and control of a certain vehicle “on a public street in the City and County of San Francisco: That heretofore, to-wit, on or about the 27th day of August, 1957 said guardian

ad litem

above named caused to be filed in the Superior Court of the State of California, in and for the City and County of San Francisco, a Complaint for Damages against the real parties in interest above named and that said real parties in interest caused an answer to be filed on or about the 27th day of September, 1957; that said answer was filed on behalf of said real parties in interest by the law firm of Barfield and Barfield, 111 Sutter Street, San Francisco, California; that said answer denied most of the material allegations of petitioner’s Complaint; that by said complaint and answer, the nature and extent of said minor petitioner’s injuries as alleged in her complaint

[588]

were placed in issue. ” It is further alleged that the attorneys for the real parties in interest moved the defendant superior court for an order requiring petitioner to submit to a physical examination by Dr. Knox Finley; that petitioner in her complaint had alleged that she had suffered the following injuries: “. . . Fractures of the skull, cerebral contusions about the body, head and limbs, severe nervous shock, and other injuries ...” and that as a result of the negligence of the real parties in interest, petitioner had suffered damages in the sum of $100,000. Petitioner’s attorney filed an affidavit in opposition to the motion and requested that if the examining physician intended to “ask questions of said minor, that plaintiff and her attorney be permitted, by the order of said court, to have a Court Reporter present, as well as affiant as one of her attorneys. ...” The trial court made its written order in which it held: “Upon the motion of plaintiff’s attorney, it is further ordered that said physical examination shall be conducted in the presence of plaintiff’s attorney.