Libby v. Conway

• Decision Date: 12 June 1961
• Court: California Court of Appeals Court of Appeals
• Parties: Denice Rae LIBBY, a minor, suing by and through her Guardian ad Litem Rachel Juanita Libby, Plaintiff and Appellant, v. Robert S. CONWAY, Defendant and Respondent. Civ. 19013.

Page 830

13 Cal.Rptr. 830

192 Cal.App.2d 865

Denice Rae LIBBY, a minor, suing by and through her Guardian ad Litem Rachel Juanita Libby, Plaintiff and Appellant, v. Robert S. CONWAY, Defendant and Respondent.

Civ. 19013.

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

June 12, 1961.

Hearing Denied Aug. 9, 1961.

Fitz-Gerald Ames, Sr., San Francisco, for appellant.

Lamb & Hoge, San Francisco, for respondent.

HOYT, Justice pro tem.

This is an action for damages against a physician for malpractice. It was brought by the infant plaintiff by and through her mother, who was duly appointed her guardian ad litem. At the time of the trial plaintiff appellant was about three years of age. She suffered from serious brain damage due either to congenital anomaly, damage at birth, or a combination of both. The trial court granted a nonsuit at the conclusion of plaintiff's case.

At the outset we are confronted with the fact that appellant's notice of appeal states that it is from the order denying plaintiff's motion for a new trial. An order denying a new trial is not appealable. Code Civ.Proc. § 963. Five days after the filing of the notice of appeal appellant filed with the clerk the notice to prepare clerk's and reporter's transcript. This filing was 17 days before the expiration of time to appeal. It stated, among other things, that the plaintiff had, 'heretofore, to wit on the 15th day of April, 1959, filed her Notice of Appeal from the order of the above entitled court denying plaintiff's motion for a new trial and from the whole of said judgment rendered in favor of the defendant and against the plaintiff herein.' Notices of appeal should be liberally construed so that appeals may be heard on their merits. It is quite obvious that respondent could not have been misled as to appellant's intention to appeal 'from the whole of said judgment.' Said notice of appeal and notice to prepare clerk's and reporter's transcript having been filed within the time for appeal, may be read together, and when so read establish that appellant is appealing from the judgment. Luz v. Lopes, 55 Cal.2d 54, 10 Cal.Rptr. 161; Adams v. Talbott, 20 Cal.2d 415, 417, 126 P.2d 347; Kellett v. Marvel, 6 Cal.2d 464, 58 P.2d 649; Glassco v. El Sereno County Club, 217 Cal. 90, 17 P.2d 703; Title Guarantee & Trust Co. v. Lester, 216 Cal. 372, 14 P.2d 297; In re Smead's Estate, 215 Cal. 439, 10 P.2d 462; Evola v. Wendt Const. Co., 158 Cal.App.2d 658, 323 P.2d 158; Girard v. Monrovia City School Dist., 121 Cal.App.2d 737, 264 P.2d 115; Karrell v. Watson, 116 Cal.App.2d 769, 773, 254 P.2d 651, 255 P.2d 464; Holden v. California Employment Stabilization Comm., 101 Cal.App.2d 427, 225 P.2d 634; Crane v. Livingston, 98 Cal.App.2d 699, 702, 220 P.2d 744; Seven Up Bottling Co. of Los Angeles v. Grocery Drivers Local Union, 97 Cal.App.2d 623, 625, 218 P.2d 41; Chinnis v. Pomona Pump Co., 36 Cal.App.2d 633, 98 P.2d 560.

Respondent cites Hamasaki v. Flotho, 39 Cal.2d 602, 608, 248 P.2d 910. In that case the appeal was from an order granting a new trial which is an appealable order. Code Civ.Proc. § 963. There was nothing which could possibly be construed as an attempt to appeal from an order denying a new trial. Respondent also cites a number of Supreme Court cases beginning with Daniels v. City and County of San Francisco, 40 Cal.2d 614, 617, 255 P.2d 785, and ending with Rodriquez v. Barnett, 52 Cal.2d 154, 156, 338 P.2d 907, which hold that no appeal lies from the trial court's denial of defendant's motion for a new trial. No one questions this fact. In each of these cases there was actually an appeal from the judgment. The question is what does one have to do to give notice of appeal from a judgment. As shown above, the courts are, where no one is misled, very liberal in construing notices to be notices of appeal from a judgment. The court is of the opinion appellant has filed a sufficient notice of appeal from the judgment entered herein and this appeal may be considered on its merits.

The next question is as to whether the nonsuit should have been granted. A motion for nonsuit must be denied if there is any substantial evidence which, with the aid of all legitimate inferences favorable to plaintiff, tends to establish the averments of the complaint. All conflicts must be resolved in favor of the plaintiff, and if different conclusions or inferences can be reasonably drawn from the evidence the court must adopt those conclusions and inferences which are favorable to the plaintiff. Sunset Milling & Grain Co. v. Anderson, 39 Cal.2d 773, 779, 249 P.2d 24; Golceff v. Sugarman, 36 Cal.2d 152, 153, 222 P.2d 665; Kirk v. Los Angeles Ry. Corp., 26 Cal.2d 833, 837-838, 161 P.2d 673, 164 A.L.R. 1.

The respondent, Robert S. Conway, M.D., testified in appellant's case that the appellant's mother came under his care in January of 1956; that while she was under his prenatal care he did not notice any abnormalities of the mother that might contribute to an abnormal birth, and that he could think of nothing in the history of the mother's pregnancy prior to birth that would indicate that the fetus had any congenital anomaly; that there was no evidence of injury to the mother either before the date of conception or up to the date of birth; that it is not good practice to force the child out by pressure on the abdomen; that it is good practice to permit nature to bring the fetal head through the birth canal by normal contractions of the uterus muscles; that it would not be good practice to exert considerable force upon the abdomen of the mother and force the fetal head through the birth canal; that if a crushing type of injury were great enough it could squeeze the brain and could cause the condition from which the child now suffers; that there should be no attempt to deliver a child until the cervix is 100 percent effaced and completely dilated; and that at the time of birth the child's head was normal size for its weight and sex.

Mrs. Rachel Juanita Libby, the appellant's mother, testified that she went to the hospital the morning of August 21, 1956; that Dr. Conway was a little late in getting there; that Mrs. Libby was not in the labor room very long when Dr. Conway came in, examined her, and told the nurse to get her ready for the delivery room; that the nurse said her cervix was...