Romero v. Eustace

• Decision Date: 20 December 1950
• Citation: 225 P.2d 235,101 Cal.App.2d 253
• Court: California Court of Appeals Court of Appeals
• Parties: ROMERO et al. v. EUSTACE. Civ. 17743.

Page 235

225 P.2d 235

101 Cal.App.2d 253

ROMERO et al. v. EUSTACE.

Civ. 17743.

District Court of Appeal, Second District, Division 2, California.

Dec. 20, 1950.

Stephen Monteleone, Los Angeles, for appellants.

Reed & Kirtland and Robert E. Moore, Jr., all of Los Angeles, for respondent.

WILSON, Justice.

The rule that the amount of credit to be given to the positive testimony of a witness is solely a question for the trial court is not applicable in a case in which the testimony, in the light of the undisputed facts, is so inherently improbable and impossible of belief as in effect to constitute no evidence at all. Bennett v. Chandler, 52 Cal.App.2d 255, 261, 126 P.2d 173; De Arellanes v. Arellanes, 151 Cal. 443, 448, 90 P. 1059. Plaintiffs invoke this rule as one of the grounds of their appeal from the judgment in favor of defendant in their action against her for malpractice. The other ground is the insufficiency of the evidence to sustain the findings and judgment. In order that the court may be justified in disregarding evidence as being inherently improbable and unbelievable there must exist a physical impossibility of its being true or its falsity must be apparent without resort to inferences or deductions. Peterson v. Peterson, 74 Cal.App.2d 312, 318, 168 P.2d 474; Poe v. Lawrence, 60 Cal.App.2d 125, 132, 140 P.2d 136.

When there is substantial evidence, although conflicting, that sustains the judgment an appellate court will not substitute its evaluation of the evidence or its opinion as to the credibility of the witnesses for that of the trial court. Buckhantz v. R. G. Hamilton & Co., 71 Cal.App.2d 777, 779, 163 P.2d 756; Estate of Pohlmann, 89 Cal.App.2d 563, 567, 568, 201 P.2d 446. This rule will obtain even though to some triers of fact the evidence in the instant case would have seemed so improbable, impossible and unbelievable that a judgment contrary to that now on appeal would have inevitably followed. Although some of the evidence is extremely unsatisfactory it is not of the character that warrants a reviewing court to reject it by reason of its improbability or of its physical impossibility. Since from the record we cannot say the evidence is improbable or impossible of belief, we must follow the rule so frequently announced that we must view the evidence in the light most favorable to respondent and resolve all conflicts in her favor.

The action is for damages for personal injuries alleged to have resulted to plaintiff Geraldine Romero from the purported careless and negligent use and application by defendant of caustic and dangerous chemicals in the irrigation of Mrs. Romero's bladder--a solution which the ordinary physician and surgeon practicing in the city of Los Angeles, in the exercise of ordinary care, would not have applied to living human tissue.

Mrs. Romero became acquainted with defendant, a doctor of osteopathy, prior to September, 1947. She told defendant she was continuously tired, not able to sleep, had to get up several times during the night, and had had difficulty with her bladder and had been receiving bladder irrigations for more than a year. Defendant consulted a urologist, Dr. Scouten, after which she gave bladder irrigations to Mrs. Romero consisting of a solution of silver nitrate and metaphen in oil. The treatments continued during September and October of 1947. On January 12, 1948, while Mrs. Romero was in defendant's office to obtain a prescription for her husband she, at the suggestion of defendant, made an appointment for the following day at which time defendant said she would try a different medication. After discussing the use of Lugol's solution with Dr. Scouten defendant, on January 13, instilled in Mrs. Romero's bladder a silver nitrate solution and metaphen in oil. After the catheter was removed defendant attached a wad of cotton the size of a pea to an...