Fowler v. Seaton

CourtCalifornia Court of Appeals
Writing for the CourtWOOD
Citation37 Cal.Rptr. 393
PartiesJerry Gene FOWLER, a minor, by her Guardian ad litem, William Randolph Fowler, Plaintiff and Appellant, v. Annabelle SEATON, doing busiess as Happy Day Nursery School, and Annabelle Seaton, individually, Defendant and Respondent. Civ. 27256.
Decision Date10 March 1964

Page 393

37 Cal.Rptr. 393
Jerry Gene FOWLER, a minor, by her Guardian ad litem, William Randolph Fowler, Plaintiff and Appellant,
Annabelle SEATON, doing busiess as Happy Day Nursery School, and Annabelle Seaton, individually, Defendant and Respondent.
Civ. 27256.
District Court of Appeal, Second District, Division 1, California.
March 10, 1964.
Rehearing Denied April 7, 1964.

William P. Camusi, Los Angeles, for plaintiff and appellant.

Parker, Stanbury, McGee, Peckham & Garrett and Francis J. Cronin, Los Angeles, for defendant and appellant.

WOOD, Presiding Justice.

The minor plaintiff, Jenny Gene Fowler, by her guardian (her father, William R. Fowler), sought damages for personal injuries. She appeals from a judgment of nonsuit.

As to the other plaintiff (father of the minor), who sought recovery of amounts paid for medical treatment of the minor, the action was dismissed upon stipulation. (Apparently, the reason for such dismissal was that the action was filed more than a year after the injury.)

Prior to calling this case for a jury trial, the judge and the attorneys held a conference in chambers wherein the judge was advised as to the basic facts of the case and the contentions of plaintiff, including the contention that the doctrine of res ipsa loquitur was applicable. It appears from appellant's brief that the judge indicated that it might be necessary to grant a nonsuit at the close of plaintiff's case. Whereupon, the judge and the attorneys agreed

Page 394

that it would save time if the matter of nonsuit were to be based upon the opening statement by the attorney for plaintiff. The attorney for plaintiff stated that his opening statement would be a complete summary of the basic facts and that he did not feel that the actual trial of the case would add to the basic statement of facts recited in his opening statement. The position of the attorney for plaintiff was that a motion for nonsuit should not be granted, but he was willing that the judge decide the issue of nonsuit at the close of the opening statement so as to avoid the necessity of presenting the evidence to a jury. It was stipulated that it would be deemed that the jury had been called and impaneled.

The opening statement of the attorney for plaintiff was in substance as follows:

Minor plaintiff, Jenny Gene Fowler, began attending the Happy Day Nursery School in September, 1958. It was a pre-school nursery, where children were left for the day by their parents, and it consisted of a house and a little children's playground with such playthings as a swing, slide, and similar paraphernalia. The nursery is located in Van Nuys, California, and was owned and operated at all times relevant by the defendant, Annabelle Seaton.

The nursery made a weekly monetary charge to the parents of such pre-school-age children who attended there. It was a private school and the defendant was at all times licensed to operate such a school.

On January 21, 1959, the minor plaintiff, Jenny, was taken to the said nursery by her mother and left in the charge and custody of the defendant, about 9 a. m. At that time, Jenny was three years and ten months of age. When her mother left her in the custody of the defendant on that morning, Jenny was in good health, sound of limb and body, and had no marks on her body.

Jenny's mother picked her up at the nursery at approximately 6 p. m. of said day.

On the way home that evening, and for the remainder of the evening, the child appeared downcast or depressed and stayed close to her mother at all times. At the dinner table, at approximately 7 p. m., Jenny's father noticed that the child's eyes were crossed. The child's hair was arranged in bangs over her forehead and her forehead was not visible. At that time, the mother approached the child to look into the child's eyes. The mother pushed the child's hair away from the forehead, and for the first time, noticed a sizeable round protruding bump on the child's forehead.

Jenny had been in the mother's immediate presence ever since the mother had picked her up at the nursery school, and the child had not received any injury nor had she been in any accident from the time she was picked up at the nursery school until her parents observed the cross-eyes and bump on the child's forehead at the dinner table.

The mother immediately called the defendant at the nursey school and asked what had happened to plaintiff at school that day. Defendant replied that another child had struck the plaintiff.

The attorney for the minor plaintiff took the deposition of the defendant, Annabelle Seaton, who testified in substance as follows:

Near the end of the day, Defendant had four or five children in a room seated in a semi-circle on the floor looking at television while the children were waiting to be picked up by their parents. Minor plaintiff was one of the children in this group. None of the children in this group was more than five years of age. Defendant was in the room somewhat behind the children at the time observing them, when suddenly, without warning, a little boy named Bobbie Schimp, seated on the floor next to minor plaintiff, hit minor plaintiff in the forehead. Bobbie Schimp had nothing in his hands. (End of deposition testimony.)

Sometime early the following morning, January 22, 1959, minor plaintiff had a nose bleed, was vomiting, and had a slight...

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