Latson v. Zeiler

BISHOP, J. pro tem.

*

The plaintiffs have given notice that they appealed from these three matters: (1) the order of October 8,1965, granting the motion of defendant Meyer Zeiler to dismiss the complaint and enter a summary judgment;

[302]

(2) the order of summary judgment entered October 18 ; and (3) the order of November 8, denying plaintiffs’ motion that the court reconsider its ruling made October 8. We are dismissing the attempted appeals from the first and third matters because neither is appealable.

(Bank of America Nat. Trust & Sav. Assn.

v.

Oil Well Supply Co.

(1936) 12 Cal.App.2d 265, 271 [55 P.2d 885, 888], and see

Desny

v.

Wilder

(1956) 46 Cal.2d 715, 752 [299 P.2d 257, 278].) We are also reversing the summary judgment.

Stated in quite general terms, this is an action to recover from the defendants, who are doctors and hospitals, the damages resulting from an unwisely recommended removal of the plaintiff-wife’s gall bladder, and the subsequent false writeup of the condition said to exist in the bladder as a means of justifying its removal, and excusing the delay in filing this action. The complaint is drafted in six counts, the first three on behalf of plaintiff Janet L. Latson, the last three on behalf of her husband, Prank Latson. Only the third and sixth causes apply to defendant Meyer Zeiler who is the respondent, but by apt reference the first 10 and the fourteenth paragraphs of the first count are incorporated as a part of the third count. Our reason for reversing the summary judgment will appear from a consideration of the third count, so fortified.

In her third count the plaintiff-wife alleges the loss of her gall bladder. Pour of the defendants were members of the medical profession, the three of these named Horowitz were partners, the fourth doctor was our defendant-respondent. During almost all of the first five months of 1962, the plaintiff-wife, so she alleges, “placed herself in and remained under the sole and exclusive examination, diagnosis, care, advice, treatment, control of defendants and each of them”; at all times “each of the defendants herein was the agent, servant and employee of each other and of his said co-defendants and was acting within the time, place, purpose and scope of the said agency and employment. ’ ’