Currier v. County of San Diego

GRIFFIN, P. J. Plaintiff-appellant, Donald L. Currier, brought this action against defendants-respondents, County of San Diego, A. E. Gallagher individually and as Coroner, James T. Weston individually and as Chief Pathologist of the Coroner’s Office, Benjamin T. Williams individually and as Autopsy Surgeon of the Coroner’s Office of San Diego County. Three causes of action are alleged. The first alleges generally that plaintiff was the husband of one Patricia Jean Currier, deceased, who died September 13, 1960, and that plaintiff was also the father of a stillborn fetus which was within the body of said decedent at the time of her death. It further alleges that in the performance of an autopsy on the [596]body of the decedent, the stillborn fetus was removed by the defendants. The gravamen of the first cause of action is that the defendants conspired together and did willfully and maliciously conceal the fact of removal of the fetus from the decedent, and failed to inform plaintiff of the act of removal, and willfully failed to file a fetal death certificate; that as a proximate result of said conspiracy and willful and malicious acts, plaintiff was prevented from giving the fetus a Christian burial.

The second alleges that the defendants thus willfully, maliciously and unlawfully deprived plaintiff of the right to give the aforesaid stillborn child a Christian burial. The third alleges that the defendants were under a duty to retain the fetus for only a reasonable period to ascertain the cause of death of the fetus and that defendants had a duty to notify plaintiff of the fact of retention; and that retention of the fetus for the period from September 13, 1960, to January 9, 1961, was an unreasonable length of time. This cause of action sounds in negligence only and not in willfulness or intention.

Defendants demurred. It was agreed between respective counsel and it was stated to the court that counsel for plaintiff did not desire to have the demurrer sustained with leave to amend because “he couldn’t amend to change the complaint in any particular,” and that the court should overrule the demurrer or sustain it without leave to amend. After hearing, the court sustained the demurrer to the first cause of action on the ground that it was ambiguous and unintelligible and allowed plaintiff 10 days to amend, and sustained the demurrer to the second and third causes of action without leave to amend. An order was signed to this effect. It does not appear that an amendment to the complaint was made. Plaintiff appeals from this order.