Justus v. Atchison

• Decision Date: 09 December 1975
• Citation: Justus v. Atchison, 53 Cal.App.3d 556, 126 Cal.Rptr. 150 (Cal. App. 1975)
• Court: California Court of Appeals
• Parties: Previously published at 53 Cal.App.3d 556 53 Cal.App.3d 556 Linda Sue JUSTUS and Jeffrey A. Justus, Plaintiffs and Appellants, v. Joseph ATCHISON, M.D., et al., Defendants and Respondents. Karen K. POWELL and Robert F. Powell, Plaintiffs and Appellants, v. Joseph ATCHISON, M.D., et al., Defendants and Respondents. Civ. 45917, 45918.

Page 150

126 Cal.Rptr. 150

Previously published at 53 Cal.App.3d 556

53 Cal.App.3d 556

Linda Sue JUSTUS and Jeffrey A. Justus, Plaintiffs and Appellants, v. Joseph ATCHISON, M.D., et al., Defendants and Respondents.

Karen K. POWELL and Robert F. Powell, Plaintiffs and Appellants, v. Joseph ATCHISON, M.D., et al., Defendants and Respondents.

Civ. 45917, 45918.

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

Dec. 9, 1975.

For Opinion on Hearing, see 139 Cal.Rptr. 97, 565 P.2d 122.

Battaglia Law Corp. and Joseph C. Battaglia, Los Angeles, for appellants.

Benton, Orr, Duval & Buckingham and Edwin Duval, Ventura, for respondent Joseph Atchison, M.D.

Archbald, Zelezny & Spray and William J. Stewart, Santa Barbara, for respondents Charles F. Schultze, M.D., John F. McLychok, M.D., and Goleta Valley Community Hospital.

THE COURT: ^*

Plaintiffs, Linda Sue and Jeffrey A. Justus, appeal from judgments in favor of defendants Joseph Atchison, M.D., Charles F. Schultze, M.D., and Goleta Valley Community Hospital, dismissing with prejudice the second and third causes of action of their third amended complaint for medical malpractice. These judgments followed the sustaining, without leave to amend, of defendants's general demurrers to these causes of action.

Plaintiffs, Karen K. and Robert F. Powell, appeal from similar judgments in favor of the same defendants except that John F. McLychok, M.D., is substituted for Charles F. Schultze, M.D. These judgments likewise followed the sustaining, without leave to amend, of the general demurrers of these defendants to plaintiffs' second and third causes of action of their third amended complaint.

In the second cause of action of each complaint, plaintiff parents, as sole heirs, seek to state a cause of action for the wrongful death in delivery of their fully developed, normal stillborn son. In the third cause of action of each complaint, plaintiff fathers seek to state a cause of action for physical injury resulting from the emotional trauma each experienced in watching the delivery of their stillborn infants.

THE APPEALABILITY OF THE JUDGMENTS

The first question presented by both appeals is whether they should be dismissed because they have been taken from judgments that dispose of less than all of the causes of action between the parties. (See Vasquez v. Superior Court, 4 Cal.3d 800, 806, 94 Cal.Rptr. 796, 484 P.2d 964.) In the Justus case there remains pending against defendants the mother's causes of action for damages from the defendants (1) for injury to her caused by the allegedly negligent delivery of her stillborn son, (2) for injuries caused to her by her allegedly negligent post-delivery care by defendants, and (3) for assault and battery upon her by defendants by reason of such allegedly wrongful delivery of her stillborn son performed without her informed consent.

In the Powell case there remains pending against defendants the mother's cause of action for injury caused to her by the allegedly negligent delivery of her stillborn son.

Plaintiffs in both cases contend that the one-final-judgment rule does not apply to these cases because all the causes of action pled have more than a single objective. We are not sure that plaintiffs are right in this contention. Generally, plaintiffs' five causes of action in the Justus case and the three causes of action in the Powell case (with the exception of the postnatal care cause of action in the Justus case) seek to recover from defendants all possible damages stemming from the two allegedly negligent deliveries. A judgment is appealable by a party if it disposes of the case as to him. (Young v. Superior Court, 16 Cal.2d 211, 214, 105 P.2d 363; McClearen v. Superior Court, 45 Cal.2d 852, 856, 291 P.2d 449.) The judgments of dismissal under appeal did dispose of all causes of action in which the fathers are plaintiffs. There is, though, one complication. This is that the mothers, who have, as just stated, remaining undisposed of causes of action, are joined with the fathers in one of the two causes of action dismissed in each case--namely, the wrongful death cause of action for the loss of the stillborn child. These statutory causes of action are single, joint and indivisible. (Watkins v. Nutting, 17 Cal.2d 490, 498, 110 P.2d 384, but see Helling v. Lew, 28 Cal.App.3d 434, 438, 104 Cal.Rptr. 789.)

We are advised that the mothers' remaining causes of action have not proceeded to trial in view of the pendency of these appeals. These cases thus present the question whether they will be disposed of through piecemeal trials or piecemeal appeals. If appeals do not lie from the dismissals of the wrongful death causes of action, we may treat those appeals as petitions for writ of mandate and thus dispose of them on their merits. (See U. S. Financial v. Sullivan, 37 Cal.App.3d 5, 11-12, 112 Cal.Rptr. 18; Clovis Ready Mix Co. v. Aetna Freight Lines, 25 Cal.App.3d 276, 281-282, 101 Cal.Rptr. 820.) Or we may adopt the view taken by another division of this statewide court recently in Schonfeld v. City of Vallejo, 50 Cal.App.3d 401, 418, 123 Cal.Rptr. 669, and hold that in conformity with federal practice separately appealable judgments may be rendered on counts that present separate claims for relief. In any event, it seems to us that these cases may be more speedily and economically handled if we permit piecemeal appeals in preference to insisting upon piecemeal trials. Therefore, in accordance with the apparent wishes of all parties to these appeals, we will not treat the appeals from the dismissals of the wrongful death causes of action as premature; instead we hold that such appeals lie under the peculiar circumstances of these cases, notwithstanding the one-final-judgment rule. (Cf. Guntert v. City of Stockton, 43 Cal.App.3d 203, 208-209, 117 Cal.Rptr. 601.)

THE MEANING OF 'MINOR PERSON'

The question whether the term 'minor person,' as used in Code of Civil Procedure section 377 creating the statutory cause of action for wrongful death, includes an unborn child has twice been answered in the negative by this statewide court. In Norman v. Murphy, 124 Cal.App.2d 95, 268 P.2d 178 a case then of first impression in this state and involving the death of an unborn child of over four and one-half months as a result of injuries to its mother in an automobile accident (Norman at 96, 268 P.2d 178), this court based its negative answer largely on the existence of Civil Code sections 26 and 29 and Penal Code section 270 as indicative of a contrary legislative intent. (Id. at 97-98, 268 P.2d 178.)

Civil Code section 26 provides that the period of minority must be calculated from the first minute of the day upon which persons are born to the same minute of the corresponding day completing the period of minority. This computation statute indicates that the minority of a person begins only at birth. ¹

Civil Code section 29, on the other hand, provides, in pertinent part, that '[a] child conceived, but not yet born, is to be deemed an existing person, so far as may be necessary for its interests in the event of its subsequent birth.' (Emphasis added.) This statute protects the interests of an unborn child from the moment of conception but only if that child is subsequently born alive. It would not therefore protect the interests of the unborn children involved in the cases before us or of its parents.

Penal Code section 270, the criminal failure-to-support statute, goes further. It says: 'A child conceived but not yet born is to be deemed an existing person insofar as this section is concerned.'

In Norman the court concluded that both Civil Code section 26's definition of the period of minority as beginning at birth and the express coverage of unborn children in the other two statutes point to the conclusion that the term 'minor person,' as used in Code of Civil Procedure section 377, does not impliedly include an unborn child. (Id. at 97, 268 P.2d 178.)

In Bayer v. Suttle, 23 Cal.App.3d 361, 100 Cal.Rptr. 212, this statewide court, with one justice of the panel dissenting, refused to depart either from the Norman construction of the term 'minor person' in section 377 or from its rationale in the case of the death of a stillborn child fatally injured in an automobile accident in the eighth month of her mother's pregnancy. (Bayer at 362-364, 100 Cal.Rptr. 212.) The court did note that California was no longer in the majority in its refusal to recognize a cause of action for the wrongful death of an unborn child but observed that the failure of the Legislature to include in its intervening amendments to section 377 express language broadening the meaning of minor person to include an unborn child demonstrated its acquiescence in the Norman construction of section 377. (Id. at 364, 100 Cal.Rptr. 212; see Bishop v. City of San Jose, 1 Cal.3d 56, 65, 81 Cal.Rptr. 465, 460 P.2d 137.) ²

Since the Bayer decision, our Supreme Court has decided the just-mentioned case of Steed v. Imperial Airlines, 12 Cal.3d 115, 115 Cal.Rptr. 329, 524 P.2d 801. The single issue on that appeal was whether a stepchild, treated in all respects as a natural child but not formally adopted by the deceased stepfather, could maintain an action for the wrongful death of the stepfather under Code of Civil Procedure section 377, which at the time the alleged cause of action arose limited such causes of action to 'heirs' and 'personal representatives' of the deceased in their behalf. (Steed at 118, 115 Cal.Rptr. 329, 524 P.2d 801.) The court pointed out that the category 'heirs'--those who inherit from the deceased in the event of intestacy--did not include stepchildren (id. at 119, 115 Cal.Rptr. 329, 524 P.2d 801) and 'absent a constitutional basis for departure from a clear expression of legislative intent,' it was bound thereby. (Id. at 120, 115 Cal.Rptr. at 332, 524 P.2d at 805.) It also noted that when the Legislature added a third category of...