Cowin v. Lindsay

• Decision Date: 03 November 1959
• Citation: 345 P.2d 347,175 Cal.App.2d 62
• Court: California Court of Appeals Court of Appeals
• Parties: Ella Bertha COWIN, Judyann Carol Cowin, a Minor, by Ella Bertha Cowin, her Guardian ad litem, Plaintiffs and Appellants, v. James E. LINDSAY, Jr., Ronald L. Johnson, Does I through XX, inclusive, Defendants, Russell L. Johnson, Respondent. Civ. 23564.

Page 347

345 P.2d 347

175 Cal.App.2d 62

Ella Bertha COWIN, Judyann Carol Cowin, a Minor, by Ella Bertha Cowin, her Guardian ad litem, Plaintiffs and Appellants, v. James E. LINDSAY, Jr., Ronald L. Johnson, Does I through XX, inclusive, Defendants Russell L. Johnson, Respondent.

Civ. 23564.

District Court of Appeal, Second District, Division 3, California.

Nov. 3, 1959.

Rehearing Denied Nov. 24, 1959.

Robert H. Lund, Long Beach, for appellants.

Overton, Lyman & Prince, Carl J. Schuck, Los Angeles, for respondent.

SHINN, Presiding Justice.

The present action was instituted by Ella Bertha Cowin, surviving wife, and Carol Cowin, a daughter of James Albert Cowin, against Dr. James E. Lindsay, a dentist, and Dr. Russell L. Johnson, an anesthetist, for the alleged wrongful death of Mr. Cowin, who passed away under general anesthesia in the course of the extraction of his teeth. Pursuant to a covenant not to sue, the action was dismissed as to Dr. Lindsay and in a jury trial verdict and judgment were in favor of Dr. Johnson. Plaintiffs appeal.

Error is assigned in the claimed refusal to give three instructions on the doctrine of res ipsa loquitur which were designated by plaintiffs as instructions to be given on their behalf. They are set out in the margin. ¹

Defendant contends that the instructions were not requested but that if they were requested they were withdrawn before the jury was instructed. They were requested by listing their numbers under which they are identified in the book of approved jury instructions which is in common use. The parties understood that they had been requested and we deem the request to have been sufficient. But we are also of the opinion that the request was withdrawn by plaintiffs.

The following proceedings took place in chambers: 'Mr. Lund: With regard to the instructions, the Court indicated the last time that it intended to give the instructions which I have requested on res ipsa loquitur. In re Salgo vs. [Leland] Stanford [Jr.] University case, 154 Cal.App. (2d) [560, 317 P.2d 170], came down recently, and I have some conflict in my mind as to whether or not res ipsa should be given in this case.

'The Court: Do you desire to withdraw it?

'Mr. Lund: If the Court indicates that it will give the instruction if I do not withdraw it, in that case I would withdraw the instruction from my group of requested instructions, not because I don't think it applies, but in the interest of caution to protect my record.

'Mr. Schuck: What is this?

'Mr. Lund: In other words, I raise this case. If the Court indicates that it agrees with me it may put a conflict in it and reject my instructions as such. I would rather have my record in that situation than to----

'The Court: Solgo vs. Stanford Hospital, 154 Cal.App. (2d)?

'Mr. Schuck: The citation is in Section 11 of 154 ACA.

'The Court: Let's take a look at it. Well, the objections raised by the defense are good. The instruction will not be given. I think that the case is in point holding that there is no general agreement among doctors on this question, and to give it is improper, so I think whether it should be the question of res ipsa loquitur will be eliminated from the instructions.

'Mr. Schuck: Your Honor may recall it in my sheet, objecting, I said if it is given I requested 206-A. That would automatically withdraw 206-A as well. I think it is 206, if I remember right.

'The Court: It's 206, and 206-A provides, both provide----'

Nothing further was said on the subject and the court did not give the instructions.

The following facts emerged from the conference in chambers: Plaintiffs had requested an instruction that from the evidence an inference arose that defendant was negligent; plaintiffs' attorney had read the case of Salgo v. Leland Stanford Jr. University Bd. of Trustees, 154 Cal.App.2d 560, 317 P.2d 170, in which it was held reversible error to give the same instruction; he feared that it would be error to give the instruction in the present case; he stated that rather than have the instruction given he would withdraw his request. The request for the instruction was thereby withdrawn. It could not have been more effectively withdrawn than by the statement to the court that plaintiffs did not wish to have given. It was the only instruction on res ipsa loquitur that had been requested. The court ruled that it would not be given. If after learning that the court would not give it, plaintiffs had changed their minds and desired to re-submit the instruction, they should have so stated. If the court had again declined to give it plaintiffs could properly have assigned error. But they stood upon their...