Say v. Barber

CURTIS, J.

Plaintiff recovered a judgment against defendants as damages sustained by plaintiff as a result of an operation alleged to have been negligently performed on plaintiff’s face by the defendant, Doctor Foster M. Hull. Defendants ask a reversal of the judgment on the ground that the complaint fails to state sufficient facts to constitute a cause of action for malpractice, and that the evidence is insufficient to support the findings. In support of the first ground defendants claim that the complaint states no specific facts showing the negligence complained of or that contributed to the injury of plaintiff. It is alleged in the complaint that defendants performed the operation and in doing so “neglected to use proper care and skill in the performance of said operation, and performed said operation in a careless and negligent manner and as a proximate consequence and cause thereof the plaintiff” sustained the damage complained thereof. No objection was made to the complaint at or prior to the trial, or at any time in the court below. On the other hand, it was treated by all parties as stating a good cause of action against the defendants for negligence. Such an objection comes too late if made for the first time on appeal

(McDougald

v.

Hulet,

132 Cal. 150, 160 [64 Pac. 278] ;

Parke & Lacy Co.

v.

Inter Nos etc. Co.,

147 Cal. 490, 493 [82 Pac. 51]). However, a complaint in many of its essential features like the one in the present action was approved by this court in the recent case of

Hall

v.

Steele,

193 Cal. 602, 605 [226 Pac. 854],

The second ground upon which defendants rest their claim for a reversal of the judgment is that the findings are not supported by the evidence. It is first contended that Doctor Hull was not bound by certain statements and representations made by the defendant Barber in the absence of

[681]