Larsson v. Cedars of Lebanon Hospital

• Decision Date: 23 May 1950
• Citation: 97 Cal.App.2d 704,218 P.2d 604
• Court: California Court of Appeals Court of Appeals
• Parties: LARSSON v. CEDARS OF LEBANON HOSPITAL et al. Civ. 17210.

Page 604

218 P.2d 604

97 Cal.App.2d 704

LARSSON v. CEDARS OF LEBANON HOSPITAL et al.

Civ. 17210.

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

May 23, 1950.

Maria A. Larsson, R. N., in pro per. and Arnold O. Steele, Los Angeles, for appellant.

Schell & Delamer, Los Angeles, for respondent Cedars of Lebanon Hospital.

Reed & Kirtland and Robert C. Packard, Los Angeles, for respondent Dr. David L. Reeves.

SHINN, Presiding Justice.

This is an appeal by plaintiff from a judgment of dismissal following a determination by the court that the action was barred by the statute of limitations. The suit is against Cedars of Lebanon Hospital, Charles C. Manger Company, a corporation, and Dr. David L. Reeves, charging negligence and malpractice. It was alleged in the fourth amended complaint that pursuant to award of the Industrial Accident Commission requiring Cedars of Lebanon Hospital to furnish plaintiff further medical or surgical treatment as might reasonably be necessary to cure or relieve from the effects of an injury theretofore suffered by her, defendant Reeves, as agent of the hospital, performed an operation upon plaintiff. This operation was performed July 25, 1940. It was also alleged that Charles C. Manger Company operated a sanitarium as the agent of defendant hospital; that plaintiff was sent to the sanitarium September 24, 1940 and was discharged therefrom December 23, 1940. Dr. Reeves was accused of malpractice, the hospital company and the Manager Company with negligence in the treatment and care furnished plaintiff, her alleged injuries being set forth at length. No acts of negligence or malpractice were alleged as of a date subsequent to December 23, 1940. The fourth amended complaint was filed by E. W. Miller, as attorney for plaintiff. The present action was instituted by another attorney August 12, 1943 against Cedars of Lebanon Hospital and Dr. Reeves. The complaint alleged negligence in connection with the operation of July 25, 1940, but no facts were alleged which would have tolled the running of the statute of limitations during the more than three-year period between the date of the alleged negligence and the institution of the action. By subsequent amendments Manger Company was added as a defendant and in the fourth amended complaint it was alleged that on the 25th day of July, 1940, and continuously until the 9th day of August, 1943, plaintiff was of unsound mind and mentally incompetent, and that from on or about the 24th day of June, 1941, until the 9th day of August, 1943, was under the disability of an adjudication of incompetency, and was an insane person within the meaning of section 352 of the Code of Civil Procedure. No other facts were alleged which would have affected the operation of the statute of limitations. The demurrer of the Manger Company to the fourth amended complaint was sustained without leave to amend and the action was dismissed as to it, but no appeal has been taken from that judgment. The action came on for trial December 9, 1947. Plaintiff was then represented by a third attorney, Neal E. Dow, but a mistrial resulted. Thereafter on motion of defendants it was ordered that a separate trial be had of the defense of the statute of limitations pleaded by all defendants and the defense of the Cedars of Lebanon Hospital that the court was without jurisdiction to try the action. Defendants at that time waived the right to urge dismissal of the action for want of prosecution under section 583 of the Code of Civil Procedure. Plaintiff was then appearing in propria persona, and so appeared at the time of the trial of the preliminary issues. In the meantime plaintiff had demanded a jury and the court had authorized the prosecution of the action in forma pauperis. On July 7, 1948, the court undertook to try the special defense of the statute of limitations, and jurors were in attendance. In the preliminary discussions between plaintiff, defendants' attorneys, and the court it appeared that plaintiff repudiated the allegations of incompetency contained in her fourth amended complaint. She asserted that they had been placed in the complaint by her attorney without her knowledge or consent, and that they were false. The trial judge explained to her that such allegations of incapacity to sue were necessary, and that they would have to be supported by proof, as otherwise the judgment would go against her because of the delay in bringing suit. This was the sole subject of a discussion which extended into the second day of the trial. The court was extremely solicitous of plaintiff's rights and exercised not only patience but perserverance in an effort to persuade plaintiff that it would be necessary for her to alter her position with respect to her alleged incompetency. All this is disclosed in nearly 100 pages of reporter's transcript. She was advised that she should not try the case herself, but should have an attorney. The same advice had been given her by other judges. She replied that attorneys she had consulted had advised her that as long as she maintained her attitude she could not overcome the defense of the statute of limitations and that they were powerless to help her. Among those who had attempted to assist her were representatives of...