Cardinale v. Kemp

Decision Date01 July 1925
Docket NumberNo. 24593.,24593.
Citation274 S.W. 437
PartiesCARDINALE v. KEMP et al.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

Action by Sam Cardinale, an infant, by his next friend, Augustino Cardinale, against T. J. Kemp, M. D., and another, wherein plaintiff, after defendant's demurrer to evidence, took involuntary nonsuit, with leave to move to set it aside. From a judgment overruling plaintiff's motion to set aside such involuntary nonsuit, plaintiff appeals. Affirmed.

Milton G. Rosenfeld, Edward A. Raithel, Louis E. Zuckerman, and Julius G. Selvaggi, all of St. Louis, for appellant.

R. P. & C. B. Williams, of St. Louis, for respondents.

Statement.

WOODSON, J.

The plaintiff brought this suit by his next friend, in the circuit court of the city of St. Louis, against the defendants for $30,000 damages for personal injuries caused by malpractice in performing an operation upon one of his eyes. A trial was had before the court and jury, and at the close of the plaintiff's evidence the defendant offered a demurrer thereto, which the court gave, and thereupon the plaintiff took an involuntary nonsuit, with leave to move to set same aside, which he accordingly did. In due course the same was presented to the court, and after due consideration the court overruled the same. Thereupon he duly appealed the cause to this court.

The defendant, Dr. McElwee, died before the trial was had, and his widow was duly appointed administratrix of his estate, and the suit was duly revived against her as such.

The petition, after making the preliminary allegations of the cause of action, charged the sole negligent act of the defendants to consist of negligently cutting the eyeball of the plaintiff with a sharp instrument, while removing a cyst from his left eye, and thereby so injured same as to cause it to shrink and to lose the sight thereof. The theory of the trial court was that the evidence for the plaintiff did not make out a case for the jury, and therefore it sustained the demurrer to the evidence offered by the defendants. This ruling of the court requires us to consider the substance of all of the evidence introduced, in order to see whether or not the court was correct in that ruling.

The plaintiff introduced a number of witnesses who testified substantially as follows:

Augustine Cardinale, a witness for plaintiff, testified, on direct examination, that he is the, father of Sam Cardinale, who is 4 years old; that witness is an elevator operator; that he has been married four years and has three children; that he now lives, and on January 8, 1920, lived at 5202 Plover avenue; that he first noticed a pimple or cyst on the eyelid of his boy, Sam, when his wife sent him a picture to France; that he looked at the eye of the child and he had a kind of a pimple on his eye; that he first saw this in the picture that his wife sent him to France; that about six months thereafter, when he came back, he saw Sam; that when he came home and saw Sam he had a pimple or cyst on the upper left eyelid; that he went to see Dr. Kemp about the cyst or pimple on the upper left eyelid of Sam some time in January, 1920; that Dr. Kemp looked in the child's eye and he said:

"This pimple here would have to be removed, but that is an easy operation on him. So he won't lose his eye at all."

I said:

"All right; if he won't lose his eyesight and it is easy, why, if you want to do it, do it."

So he said to me:

"Well, I couldn't do it in my office; I couldn't do it myself, either. I will take a partner with me and I came up to his office and have him operate on your kid."

So, when I come in the afternoon

"Q. Wait a moment. Who came where? A. Dr. Kemp and McElwee.

"Q. Where did they go or come to? A. 5202 Plover avenue.

"Q. Go ahead. A. So they came in. They said, `Well, we was a little late.' I said, `That is all right.' As soon as they came in I said, `Doctor, if you doctors understand the business, why, go ahead and do the work. If you don't, I won't pay your expenses coming up here,' and Dr. Kemp and Dr. McElwee they said they had 40,000 cases.

"Q. What was that last? A. Dr. Kemp and Dr. McElwee they told me, they said we have 40,000 cases make like that with a pimple in the eyelid.

"Q. You just said that Kemp told you that he had 40,000 of similar cases? A. Yes. "Q. And did he say that he had removed the cysts in all those cases? A. Yes, sir; he bad 40,000 cases just like my kid."

That the doctors chloroformed the child while he was asleep; that witness saw the doctors turn the child's eyelid. I said, "What you do?" "We want to remove from the inside." I said, "What for?" He said, "You cut him off inside."

The witness further testified:

"Mr. Williams (Q.): Wait a minute. What do you mean by the eyelid up? A. The eyelid was turned up.

"Q. Turned up like that? A. With an instrument. I told him, `What you doctors doing?' They said, `We are going to take the cyst from the inside.' I says, `Why, you told me from the office to take it from the outside and it was easy.' `Well,' he said, `from inside it won't leave no scar.' So I said, `You the doctors; you know your business.' They said, `Yes'"

Witness further testified that this occurred after Dr. Kemp had given the child chloroform and had him on the table; that Dr. McElwee had the instrument in his hand and both of them were working on the boy; that he turned the eyelid up and started to scrape from the inside; that he had an instrument in his hand at that time resembling a pair of scissors and a little lance; that it looked just like a knife; that witness left the room for three or four minutes to get a towel; that when he returned with the towel he went inside the room where the child was being operated on; that he saw the child's eyelid upside down and the doctors working on it; that the doctors told him they were operating from the inside so it won't leave a scar; that he was in the room while the doctors were operating to remove the cyst during all the time except when he left to get the towel; that after the operation the doctors bandaged the child's eye with a piece of cotton and put a bandage on it; that the bandage went around his head, covering his left eye and leaving the other open; that this was in the afternoon; that the doctors took their coats and told the witness to bring the child to the office every other day; that witness sent his wife to the office because he had to work; that after the operation the child cried; that the child slept between witness and his wife; that witness held one hand and his wife the other because he was afraid the bandage might be moved; that the child was restless about 10 or 11 o'clock that night and was suffering pain; that he rested two or three hours and then cried again; that he saw Dr. Kemp a week later when he took the child to his office; Dr. Kemp took the bandage off, looked in his eye, put some medicine in it and said, "The eye was coming fine"; that he washed the eye and put the bandage back with a piece of cotton; that Dr. Kemp told him "When you go home warm a little warm water and get a piece of cotton" and if you see the eye run a little, wash it out"; that he saw the doctor again two weeks after; he examined the eye again, took the bandage off, put medicine in the eye "and he said the eye was all right. So it was all right, he said"; that Dr. Kemp said this and put a piece of cotton and bandage back on; that the bandage was not taken off from the time that the doctor put it on until witness or his wife took the child back to the doctor; that witness never saw the bandage come off; that witness saw the doctor the next time; that he did not see any improvement in the child's eye; that he went to Dr. Kemp and said "Doctor, I am the father of the child, so that is over a month now, and didn't see any improvement in the kid's eye at all. See what you can do"; that Dr. Kemp called Dr. McElwee, who got hold of his eye and opened it and when he opened his eye, "I see he never had no eyeball at all. Just covered with flesh. So they telephoned to Dr. Norris"; that Dr. Kemp took witness to Dr. Norris; that witness, Dr. Kemp, the child and witness' wife were present at the time; Dr. Norris examined the eye and washed it out with a syringe to keep the pus out; that witness asked Dr. Norris if the child could have his eye back; that Dr. Norris said he did not know, but thought the eye infected; that perhaps the child had put a finger in his eye; that witness told Dr. Norris that was impossible because he had his bandage on all the time and witness' wife took care of him during the time the bandage was on his eye; that Dr. Norris told them to come back the next day; that witness first discovered that the child's eye was destroyed and that he was blind in that eye the next day when he went to Dr. Norris; that the child suffered pain in his eye for five or six days after the doctors operated on him, and that he never rested much.

Witness, recalled, testified that the doctors were at his house about three-quarters of an hour on January 8, 1920; that he was in the room about 20 minutes while the doctors were there; that one of the doctors told him to get a towel; that he hurried to get a towel in another room which took him about three or four minutes; that he re-entered the room where the doctors were; when he got back the doctor had the child on the table and they started working on him; that they had the eyelid upside down and were working on it when he went in; Dr. McElwee had a scraper in his hand, like a knife in his hands, and he shook with his hands.

"Q. His hands shook? A. Oh, yes; shivered.

"Q. Did you notice that his hand was shivering, or shook, as you say? A. Yes."

That his hand was right close to the eye; that when the witness noticed his hand shake Dr. McElwee had a thing in his hand just like a knife; that at that time Dr. Kemp was holding the child's eyelid and had...

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