Martin v. Noble

WHELAN, J. Plaintiff appeals from a judgment following the sustaining of a demurrer without leave to amend, and from an order denying his application for temporary injunction.

[367]The complaint, filed July 20, 1964, alleged that the defendant here, Noble, was plaintiff in action No. 121476 (the principal action) filed in the same court, seeking to recover damages from Martin, plaintiff in the present action, for injuries allegedly suffered on March 18, 1963; that the nature and extent of the injuries and damages, if any, of Noble, was a substantial issue in the principal action, whose trial was set for August 31, 1964; that Noble, prior to that date, intended to have surgery performed on her neck and to have vertebrae fused; that said surgery would be expensive, painful, and result in some permanent disability; that Noble contended that such surgery was necessarily required because of the accident which gave rise to cause No. 121476; that such surgery was wholly unnecessary; that a delay of the proposed surgery until after the trial of the principal action would in no way prejudice Noble’s physical condition; that should the proposed surgery be carried out prior to said trial and should Martin be held legally liable for damages arising out of the accident, he might be charged for unnecessary surgery and the consequences resulting therefrom; that therefore he would be irreparably injured and that he had no adequate remedy at law.

. The allegations of the complaint were sufficiently supported by affidavits of a medical doctor and of Martin’s attorney.

Martin’s allegations and supporting documents were countered only inferentially by references in Martin’s medical expert’s reports to the opinions of Noble’s medical attendants.

Martin’s argument, based upon the foregoing, is that if the operation were to become a fait accompli before trial, he might be charged with the cost and consequential damages of the operation, even should it be unnecessary and ill-advised.

Conclusion

The proposed operation was advised, on medical grounds, by the attending physician of the person sought to be enjoined, who was of legal age and otherwise free from legal disability. The operation was of a kind that it was not illegal to perform. Martin’s interest was that of a litigant against whom, if his liability should be fixed, damages might be assessed for the cost of the operation and its possibly harmful results only if in the principal action the operation should be found to have been necessary.