Powers v. Sissoev

• Decision Date: 17 June 1974
• Citation: 39 Cal.App.3d 865,114 Cal.Rptr. 868
• Court: California Court of Appeals Court of Appeals
• Parties: Kathleen POWERS and Karen Powers, Plaintiffs, Respondents and Appellants, v. William M. SISSOEV et al., Defendants and Respondents. William M. SISSOEV et al., Cross-Complainants and Respondents, v. WILMINGTON MEDICAL GROUP et al., Cross-Defendants and Appellants. Kathleen POWERS and Karen Powers, Plaintiffs, Respondents and Appellants, v. Dr. Jack EGLIN et al., Defendants and Appellants. Civ. 42610.

Page 868

114 Cal.Rptr. 868

39 Cal.App.3d 865

Kathleen POWERS and Karen Powers, Plaintiffs, Respondents and Appellants, v. William M. SISSOEV et al., Defendants and Respondents.

William M. SISSOEV et al., Cross-Complainants and Respondents, v. WILMINGTON MEDICAL GROUP et al., Cross-Defendants and Appellants.

Kathleen POWERS and Karen Powers, Plaintiffs, Respondents and Appellants, v. Dr. Jack EGLIN et al., Defendants and Appellants.

Civ. 42610.

Court of Appeal, Second District, Division 4, California.

June 17, 1974.

Bonelli & Brown, and R. Edward Brown, Sherman Oaks, for plaintiffs, respondents and appellants Powers.

Demler, Perona, Langer, Bergkvist, Lauchengco & Lewine, and Edison J. Demler and Carl M. Bergkvist, Long Beach, for defendants, cross-complainants and respondents Sissoev, Speede Speedometers and Martineau.

Hillsinger & Costanzo and George R. Hillsinger, Los Angeles, for defendants, cross-defendants, appellants and respondents Wilmington Medical Group, Jack Eglin and Donald Citronbaum.

KINGSLEY, Associate Justice.

The instant appeals arise out of actions and cross-actions resulting from an injury suffered by plaintiff Kathleen Powers (Kathleen) and the medical treatment of Kathleen thereafter. ¹

On the afternoon of March 22, 1969, Kathleen, then five and one-half years old, darted into the street in front of an ice-cream truck, and was struck by another truck driven by defendant Sissoev. The child was taken by ambulance to defendant Wilmington Receiving Hospital, an emergency receiving center owned by defendant Dr. Eglin and in charge of defendant Dr. Citronbaum. The child was given treatment and sent home; thereafter she developed severe symptoms and was taken to another hospital and eventually to a third hospital where brain surgery was performed. The child is now permanently damaged, requiring constant care and feeding as well as assistance with all bodily functions.

Kathleen, through her mother as guardian ad litem, sued Sissoev ² for the injury to herself; in a separate lawsuit she also sued the emergency hospital ³ and the two doctors for medical malpractice. ⁴ In the lawsuit first mentioned, Sissoev cross-complained against the emergency hospital and the doctors. Kathleen's mother, Karen, individually, joined in the first mentioned complaint, suing the ice cream truck and the other truck defendants on a claim for personal injury to herself allegedly arising out of the accident and, in the second complaint, sued for damages to herself resulting from the medical treatment given her daughter. The two actions were consolidated for trial.

The doctors had pled the statute of limitations as an affirmative defense to Karen's action against them. That issue was tried first and resulted in a determination by the court that the statutory bar existed. That ruling is not here contested.

At the opening of the trial, after the statute of limitations issue had been disposed of, the driver objected to testimony on the cause of action ('Third Cause of Action') pleaded against him by Karen. After argument, that objection was sustained. As hereinafter indicated, Karen's individual appeal seeks to reverse that ruling.

The trial proceeded on Kathleen's cause of action against the driver, on Kathleen's malpractive action against the doctors, and on the driver's cross-complaint against the doctors. The jury returned a verdict of $275,000 in favor or Kathleen and against the driver; it returned a verdict in favor of the doctors as against Kathleen in the malpractice action. Judgment on those verdicts was duly entered.

Kathleen and Karen each moved for a new trial, Kathleen against the doctors, and Karen against all defendants. As against the driver, Kathleen asked for an additur or, in the alternative, for a new trial on the issue of damages only. The driver moved for a new trial as against Kathleen and as against the doctors. ⁵ After a hearing, the trial court made a minuteorder as follows:

'All motions for new trial are granted on the ground of insufficiency of the evidence except plaintiff Karen Powers motion for a new trial, which is denied.' ⁶

This was supplemented within the statutory time (Code Civ.Proc. § 659) by a formal order and specification of grounds. In that order the court expressed its ruling in the following terms:

'Motion for new trial is granted on all the issues on the ground of insufficiency of the evidence to justify the verdict and that the verdict is against the law.'

Karen has appealed from 'the order of the trial court granting the defendants' motion to dismiss her Third Cause of Action and from the order of the court denying her motion for a new trial.' The doctors have appealed from the order granting a new trial as to them. The driver, of course, has not appealed; and Kathleen has not appealed from the order granting a new trial to the driver.

I.

As we have said above, the only appeal from the order granting a new trial is by the doctors. They contend only, that the order granting a new trial does not meet the requirements of specificity set forth in section 657 of the Code of Civil Procedure, as that section has been construed in Mercer v. Perez (1968), 68 Cal.2d 104, 65 Cal.Rptr. 315, 436 P.2d 315, and other cases. No contention is here made that the order, if it meets the requirements of specificity, is otherwise reversible. The statement of reasons for granting a new trial reads as follows as to the doctors:

'Motion for new trial is granted on all the issues on the ground of insufficiency of the evidence to justify the verdict and that the verdict is against the law.

'On the other hand, there is ample evidence to find that defendants Citronbaum and Elgin were negligent in caring for the child. They did not take x-rays, a procedure most doctors who testified thought was called for, nor did they retain the child for proper observation during the critical period. Dr. Wilson was emphatic in his testimony that this amounted to negligence, as were most of the other experts.'

We see no advantage in discussing all of the cases which have applied the rule herein involved. In the case at bench, the sole issue for the jury was one that turned on expert testimony as to the standard of care expected of the doctors in the emergency hospital. The order clearly shows that the trial court accepted as controlling the expert testimony on behalf of Kathleen; it need go no further.

II.

We have set forth above the language of Karen's notice of appeal. No appeal lies from an order denying a motion for a new trial (Code of Civ.Proc. § 904.1; 6 (Part 1) Witkin, Calif.Procedure (2d ed. 1971), Appeal § 71, pp. 4084--4085). The record shows that the attack on Karen's individual cause of action resulted in an order made August 1, 1972, that the driver's 'objections to introduction of evidence on third cause of action in plaintiff's amended complaint in case number SOC 20--316, is sustained, on the ground that plaintiff does not state a cause of action.' While that order would support a judgment against Karen and in favor of the driver, the record does not indicate that any such judgment had been entered at the time the appeal was filed. However, Karen's appeal has been briefed on the merits. To dismiss her appeal merely to have a judgment formally entered below with a new appeal would be a useless waste of judicial and litigant time. Accordingly, as was done in a comparable situation in Zellers v. California (1955), 132 Cal.App.2d 56, 281 P.2d 296, we order the trial court to enter, nunc pro tunc as of a date prior to September 22, 1972, ⁷ a judgment in favor of the driver and against Karen; we then treat Karen's notice of appeal now on file as a premature but effective appeal from that judgment. (Rule 2, subd. (c), California Rules of Court; 6 (Part I) Witkin, California Procedure (2d ed. 1971), Appeal, 368, pp. 4340--4341.)

III.

In considering Karen's appeal, we take note not only of the allegations in her complaint, and of the offer of proof made by her counsel in the trial court, but of the testimony introduced at the trial of the personal injury and malpractice actions on behalf of Kathleen. Since the attack on Karen's case was made at trial, and not by demurrer or by pretrial noticed motion, she was entitled to amend her complaint if, by so doing, she could state a cause of action. (MacIsaac v. Pozzo (1945), 26 Cal.2d 809, 816, 161 P.2d 449; Hayes v. Risk (1967), 255 Cal.App.2d 613, 628, 64 Cal.Rptr. 36.) Our task on this appeal, therefore, is to determine not solely whether Karen's complaint was sufficient in and of itself, but whether, as shown by the whole record, she has available evidence which, properly pleaded, would sustain a cause of action in her for emotional distress and physical harm.

The case for Karen, as shown by the entire record, was as follows: She was not at home at the time of the accident and, thus, did not see or hear it; in the complaint she alleged Kathleen was injured at 3:30 P.M. and that she 'witnessed' her daughter's injuries at 5:00 P.M.; she returned home after Kathleen had been taken by ambulance to defendant emergency hospital; she did not see her daughter until 30 to 60 minutes after the accident; she saw the onset of convulsions later that evening, and saw her daughter in the hospital for a substantial period before and after surgery; she has seen and tended Kathleen in her present condition; and she has suffered actual physical, as well as emotional, pain and distress as a result of the events witnessed by or known to her.

The issue before us starts, insofar as California is concerned, with the decision, in 1968, in Dillon v. Legg (1968), 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912. That case, for the first time in California, allowed recovery to a parent for injury resulting from the emotional shock flowing from an accident to a child. In so holding, the court stated its position as follows:

'We note, first, that we deal here with a...