Antles v. Aetna Cas. & Sur. Co.

• Decision Date: 22 October 1963
• Citation: 221 Cal.App.2d 438,34 Cal.Rptr. 508
• Parties: Alfred R. ANTLES, Plaintiff and Appellant, v. The AETNA CASUALTY AND SURETY COMPANY, a Connecticut corporation, and James A. Baird, Defendants and Respondents. Civ. 27135.
• Court: California Court of Appeals Court of Appeals

Page 508

34 Cal.Rptr. 508

221 Cal.App.2d 438

Alfred R. ANTLES, Plaintiff and Appellant, v. The AETNA CASUALTY AND SURETY COMPANY, a Connecticut corporation, and James A. Baird, Defendants and Respondents.

Civ. 27135.

District Court of Appeal, Second District, Division 1, California.

Oct. 22, 1963.

Rehearing Denied Nov. 15, 1963.

Von Herzen & Hutton and Walter P. Gribben, Los Angeles, for plaintiff and appellant.

Gibson, Dunn & Crutcher and G. Edward Fitzgerald, Los Angeles, for defendant and respondent Aetna Casualty & Surety Co.

No appearance for respondent Baird.

WOOD, Presiding Justice.

The record herein consists of an agreed statement on appeal. There is no clerk's transcript or reporter's transcript. The pleadings are not before this court.

Plaintiff, a chiropractor, had obtained from the defendant insurance company a policy of liability insurance which would indemnify him for any judgments rendered against him for such an injury as that involved herein, unless such liability was excluded by an endorsement thereon entitled 'Exclusion of Malpractice and Professional Services.'

While such insurance was in effect, James A. Baird, who had been injured as hereinafter described, while he was in Dr. Antles' office, obtained judgment in a municipal court action against Dr. Antles (plaintiff herein) for $750 damages and $350 as attorney's fees and costs. The insurance company had refused to defend Dr. Antles in that action.

In the present action (in the superior court) plaintiff Dr. Antles sought to recover from the defendant insurance company, under the provisions of said policy, the amounts awarded against him in the municipal court judgment. (The record does not show what relief was sought as to the defendant James A. Baird herein.) In a nonjury trial herein, the court concluded that the insurance company 'provided no coverage under its policy of insurance to Alfred R. Antles for the incident involving James A. Baird inasmuch as the incident came within the malpractice or professional service exclusion in the policy.' The judgment herein provided that defendant insurance company was not obligated under the terms of the policy to defend Dr. Antles in the municipal court action, or to pay any judgment obtained against him therein. Plaintiff Dr. Antles appeals from the judgment. (No point is made on appeal with reference to any asserted error in the judgment insofar as it affects respondent Baird; and, as above shown, there is no appearance on his behalf.)

Appellant contends that, under the evidence herein as to the manner in which the injury occurred, the court erred in determining that there was no insurance coverage for the incident involving Mr. Baird.

The enforcement attached to the policy recited in part, as follows:

'ENDORSEMENT

EXCLUSION OF MALPRACTICE AND PROFESSIONAL SERVICES

'It is agreed that, as respects any classification stated below, the policy does not apply to injury, sickness, disease, death or destruction due to the rendering of or failure to render any professional service.

'Classification of Operations:

* * *

* * *

'Chiropractors Offices

* * *

* * *

This endorsement forms a part of the policy to which it is attached.'

In June 1957 plaintiff Dr. Antles began his practice as a chiropractor at 220 East Central Avenue in La Habra, where he continued to practice until after the incident herein. He did not carry any malpractice insurance--he was aware that the liability policy which he had did not cover malpractice. In the latter part of 1957 James A. Baird became his patient and was given heat treatments by using a thousand-watt infrared lamp that was on 'a pulley effect' at the outer end of a wall bracket which was nailed to the wall--at a place near the treatment table. By means of the pulley, the lamp at the outer end of the bracket could be lowered or raised above the treatment table; and by means of a bracket swivel (presumably on the wall), the bracket could be swung back and forth above the table (to and from the wall)--that is, when the lamp was not in use it could be swung toward the wall and out of the way. The lamp and bracket had been installed in the office prior to the time plaintiff purchased the office equipment (June 1957) from a chiropractor who formerly practiced there.

On January 27, 1958, while the insurance policy was in effect, and pursuant to a scheduled appointment for an infrared heat treatment, Mr. Baird went into plaintiff's office. Preparatory to receiving the treatment he removed his shirt and then lay on the treatment table, facing downward.

Dr. Antles testified, in part, as follows: Before applying the lamp heat in the treatment, it was necessary for him to make an adjustment of the lamp, that is, to swing the lamp out from the wall and raise or lower it to its proper height for treating Mr. Baird, which height was about six feet above him. It was a radiating-type lamp which would burn a patient if he were under it for too long a period of time. The use of the lamp involved a supervision problem for the doctor. The adjustment of the height of the lamp from the patient, and the duration of time the patient stayed under the lamp, required the supervision of Dr. Antles in his capacity as a chiropractor. The doctor adjusted the lamp in the manner above indicated, and proceeded to give the heat treatment. It was his intention to have the patient on the table about fifteen minutes for the treatment....