Steiner v. Goodyear Tire & Rubber Co.

CRAIG, Acting P. J.

A demurrer having been sustained without leave to amend, the plaintiff appealed.

The appellant was injured during the month of September, 1925, while in the employ of the respondent corporation, by an iron bar which fell from the hands of another employee who worked above him. Respondent Cheney, a physician and surgeon, about three years thereafter, examined appellant, pursuant to agreement and at the instance and request of the latter and his employer, as a result of which examination another surgeon performed an operation upon appellant’s head for depressed fractures. It was alleged by the complaint that respondent company also agreed to have experts determine the nature of appellant’s injuries and report the same to the surgeon employed by it to perform said operation; that as a result of such agreement the operation was so performed under the direction of the respondents; that the respondent company and Doctor Cheney conducted the examination so negligently that they failed to discover one depressed fracture, and failed to inform the operating surgeon thereof, as a result of which negligence it was not relieved. It is not alleged, nor does appellant remotely infer' that the Goodyear Tire and Rubber Company of California was authorized to exercise or assume a sixth sense invading the realm of diagnostics; nor is it alleged or even suggested that the existence, location or nature of the asserted latent fracture could have been discovered by one endowed with surgical skill of a degree disproportionate to the supernatural. It is not contended that the respondent corporation failed to employ the best medical and surgical attendants available, nor that the respondent physician was not possessed of, or did not exercise, that degree of care, skill and learning ordinarily possessed and exercised by physicians and surgeons practicing their profession in the same or a similar locality. More than this could

[164]

not be required.

(Nicholas

v.

Jacobson,

205 Cal. 577 [271 Pac. 1057].) However, questions of fact are not within the purview of appellate courts in reviewing rulings upon the judgment-roll. That the complaint was insufficient is apparent. That the respondents did not afford the appellant that degree of care, skill and learning contemplated by their contract and to which he was legally entitled, we are unable to hold as a matter of law.