Baily v. Kreutzmann

THE COURT.

The defendant is a physician and surgeon, and as such he examined the plaintiff Hannah M. Baily, and pronounced her ailment to he a cystic tumor of the ovary, and ordered her to a hospital, where he proceeded to operate upon her for the said ailment. After an abdominal incision and careful inspection of the parts, he discovered that the ovaries were in reasonably good condition, and, finding the uterus enlarged, concluded that the patient was probably pregnant, and sewed up the incision. The wound healed, and subsequent events proved that she was not pregnant at the time of the attempted operation. Thereafter the physicians and surgeons called as witnesses reached the conclusion, from the history of the case and all the circumstances surrounding it, that the patient’s trouble was neither pregnancy nor an ovarian tumor, but was in fact a fibroid tumor of the .uterus or something else nearly allied thereto. The patient and her husband brought this suit to recover forty thousand dollars for the said alleged unskillful and negligent acts of defendant. The verdict and judgment being in defendant’s favor, plaintiffs moved for a new trial, and bring this appeal from the order denying the motion.

1. Respondent makes the preliminary objection that the proposed statement on motion for new trial was not served in time, and therefore the court was warranted in denying the motion, because there was no proper record to base it on. But it appears that appellants made a motion in due form to be relieved from their failure to serve the statement in time upon the ground of excusable neglect. This motion was granted, and thereafter the statement was duly settled and certified by the court. It was clearly within the discretion of the court to do this.

(Banta,

v.

Siller,

121 Cal. 414.) In view of the trial court’s order relieving appellants from their failure to serve the statement in time, we will not presume that the new trial was refused on the ground of any delay in the service of the proposed statement.

[521]

2. Many objections are urged by appellant, but we will discuss only those errors which seem to require a reversal of the order appealed from.