Rhodes v. California Hospital Medical Center

[608]

Opinion

KINGSLEY, Acting P. J.

—Plaintiffs have filed an action for the wrongful death of their wife and mother, allegedly due to the negligence of defendant hospital. The hospital sought arbitration of that claim, relying on two instruments, one executed by the decedent and one executed by plaintiff husband as her agent, both of which contained provisions calling for such arbitration. The trial court denied the hospital’s petition for arbitration. We affirm that order.

I

We deal first with a preliminary issue. The hospital, acting pursuant to section 634 of the Code of Civil Procedure, sought a finding, in addition to those made by the trial court, reading as follows:

“That the agreement to arbitrate signed by the decedent Beate Rhodes upon admission to Defendant Hospital was binding upon said decedent and would have governed any claims [tjhat she might have made against Defendant Hospital had she lived.” The request for that additional finding was denied. We see no error. We have examined the documents submitted to the trial court in support of, and in opposition to, the petition to compel arbitration. Nowhere does it appear that it was ever contended that the agreement executed by Mrs. Rhodes was not binding on her had she survived. The sole issue raised in the trial court, and here, was whether that instrument, or the second one signed by Mr. Rhodes purportedly as her agent, bound her heirs. It follows that the requested finding, being directed to a matter not in issue, was properly denied.

II

We are cited to no case involving the issue properly before us. The hospital relies on cases, such as

Buckley

v.

Chadwick

(1955) 45 Cal.2d 183 [288 P.2d 12, 289 P.2d 242], holding that heirs could not maintain a wrongful death action where their decedent had no cause of action against the defendant because of matters going to the merits of any action by the decedent. They also rely on the railroad pass cases,

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