Figlietti v. Frick

RICHARDS, J.

This appeal is prosecuted by the plaintiff from a judgment of the superior court in and for the city and county of San Francisco in the defendants’ favor after the court had granted a motion for nonsuit at the conclusion of the plaintiff’s case. The action was one instituted by the plaintiff for the recovery of damages for the death of her minor son, which occurred on or about May 4, 1922, while the latter was an inmate of the City and County Hospital of San Francisco, and which death was alleged to have occurred after the performance of an operation upon said inmate by or under the direction of the defendants herein, who were the physicians, surgeons, assistants, and employees in charge of said hospital at said time. The plaintiff’s fourth amended complaint was in two counts, in the first of which she alleged that the operation upon her deceased son, a minor, was performed by and under the direction of said defendants, and that the same was performed wrongfully, unlawfully, carelessly, unskilfully, and negligently, and that the same resulted in the death of her said minor son as the direct result of said operation. In the second count of her said complaint the plaintiff, after repeating by adoption the first eight paragraphs of the first count of her said complaint, but omitting those later paragraphs wherein the negligent performance of said operation was averred, proceeded to aver that the operation thus alleged to have been performed upon the person of her said minor son was performed “wrongfully and unlawfully and without the knowledge or consent of the parents or guardian of said minor,” and that by reason of said operation the said minor, on or about May 4, 1922, died. The defendants answered severally with denials of the gravamen of both counts of said complaint, and the cause proceeded to trial before a jury. At the beginning of the trial counsel for the defendants joined in a motion to compel the plaintiff to an election upon which count of her said complaint she would proceed to trial. The trial court, over the objection of the plaintiff, granted said

[248]

motion, and thereupon the plaintiff, still insisting upon her objection, elected to proceed to trial upon the second count of her said complaint, viz., that averring that the death of her said minor son occurred through the performance upon him by said defendants of said operation without the parents’ or guardian’s consent. During the” progress of the trial the court from time to time sustained objections urged by defendants’ counsel to the introduction of any evidence tending to show negligence on the part of the defendants, or any of them, in the performance of said operation, thereby confining the plaintiff’s evidence strictly to the issue of consent.