Appeal from St. Louis Circuit Court; Benjamin J. Klene, Judge.
Suit by William Eichholz against J. D. Poe and W. M. Baker. From an order of involuntary nonsuit, plaintiff appeals. Reversed and remanded for new trial.
This is a suit for malpractice, in which plaintiff laid his damages at the sum of $10,000, and was tried in the circuit court of the city of St. Louis, on the 10th day of April, 1917, upon the following amended petition, which we set out in full, omitting formal part:
"Comes the plaintiff, and by leave of court files his first amended petition, and for cause states: That plaintiff is a resident of the city of St. Louis, Mo., and that at the time hereinafter mentioned, the defendants Dr. J. D. Poe and Dr. W. M. Baker were physicians and surgeons, engaged in the practice of their profession in the city of St. Louis, Mo., and that defendant O. R. Reed was a dentist engaged in the practice of his profession in the city of St. Louis, Mo. Plaintiff for his cause of action states: That on or about the 18th day of November, 1911, the defendants Poe and Baker performed an operation on plaintiff by removing from the body of plaintiff a kidney, and in consequence of said operation the plaintiff became ill and remained in a weakened and painful condition, the said defendants receiving a reasonable compensation for the services so rendered to the plaintiff.
"That thereafter on the 21st day of November, 1911, a few days after said operation had been performed upon the body of plaintiff by said defendants, and while plaintiff was in a weak physical condition as a result of said operation, and while confined to his bed at the hospital, plaintiff then being in charge of the defendants, the said defendant, well knowing the weakened physical condition of the plaintiff, engaged the services of defendant Dr. O. It. Reed to extract a tooth from the mouth of plaintiff.
"That said defendants, knowing the weakened physical condition of the plaintiff, negligently acted, performed and permitted said tooth to be extracted from the mouth of plaintiff, and so negligently and unskillfully conducted themselves in and about the extraction while plaintiff was in such weak physical condition, that plaintiff's lower jawbone was broken and fractured. That said defendants conducted themselves in and about the extraction and treatment thereafter of said tooth, through their negligence and unskillfulness in performing and attending to said tooth and jawbone after said tooth had been extracted, that inflammation and blood poison ensued to plaintiff.
"Plaintiff states that all of said defendants knew of the physical condition of plaintiff at the time of the extraction of the tooth, and knew that by reason of said extraction that plaintiff's jawbone was broken and fractured as a result of their carelessness, negligence and unskillfulness, and that part of said jawbone remained loose in the mouth of plaintiff which would cause the inflammation which ensued to the plaintiff; that through and by reason of all the negligence and unskillfulness of said defendants as aforesaid, and by reason of the inflammation and blood poisoning ensuing by reason of said carelessness, negligence and unskillfulness in the conduct on the part of defendants as aforesaid, the plaintiff became sick and has been, since said tooth was extracted and up to this time, unable to attend to his proper and ordinary vocation, and that plaintiff by reason of said negligence and unskillfulness a said defendants in attending plaintiff as aforesaid has been put to great pain, and was compelled to expend large sums of money for nursing and medicine and medical attention in the sum of $1,500. That he has lost and will lose the benefit of his labor, and by reason of said carelessness and unskillfulness of the defendants, plaintiff has received a permanent injury to his said jawbone and mouth and will be permanently disabled in the proper and ordinary use of his mouth and jaw, and will be permanently disfigured.
"That as a result of all of the injuries brought on through the' negligence of the defendants the plaintiff has been damaged in the sum of $10,000 for which he prays judgment."
The answer of defendants was an admission of their professional characters and a general denial of all the other averments in the petition.
At the trial of the case and at the close of the plaintiff's case defendants demurred to the testimony which was sustained by the court, whereupon plaintiff suffered an involuntary nonsuit with leave to move to set the same aside. In due time the motion to set aside was filed, and the error alleged is that the court erred in giving the peremptory instructions which forced the nonsuit. The amount involved brings the case here, and plaintiff duly appealed to this court.
The Testimony.
The plaintiff did not call any supporting testimony in his behalf, either' lay or expert, although he might have called the nurse who attended him at the hospital and who was familiar with all of the steps taken in his treatment, or he might have called Dr. Culinane, who was called by him and who treated him for the same ailments after he had discharged defendants. When asked on cross-examination why Dr. Culinane was not there, he answered, "Because he isn't subpoenaed, I reckon."
His case therefore stands or falls upon his testimony alone, and, for this reason, we have set it out in full. It is as follows:
"My name is William Eichholz. I am the plaintiff is this cause, and have lived in the city of St. Louis for 16 years. I am a blacksmith. Prior to the operation my health was good, fine; I worked every day. About the 1st of November, 1911, I became ill. After I became ill I employed Drs. Poe and Baker to treat me. They commenced to treat me after I went to the hospital, the Missouri Baptist Sanitarium. I went at their suggestion. They came to see me every" day, but they didn't do much treatment. After I got there Dr. Poe and Dr. Baker operated, removed one of my kidneys, took one of my kidneys out. The next day after the operation one of my teeth got to hurting me. I reported it right away to Drs. Poe and Baker. Dr. Baker came and sent for his dentist, Dr. O. R. Reed. Dr. Reed came and put some oil of cloves in my tooth. That was about November the 21st, a day or two after the operation. On the same day Dr. Reed came back and extracted my tooth and broke my jaw. Dr. Baker was present when Dr. Reed extracted my tooth. Up until the tooth was extracted by jaw had not been swollen, just a sore toothache. Dr. Reed never came back after extracting my tooth.
"Q. Now, who undertook, if anybody, to take care of your mouth after the tooth was extracted? A. Well, Dr. Baker cut on me the next day. Q. How long was it after the tooth was extracted before Dr. Baker did anything to your mouth? A. The next morning after the tooth was extracted. Q. What did he do? A. Ran a knife in my jaw on the outside. Q. Did he make any scar that has remained? A. Yes, got one right here (indicating). There is a hole in my jaw now. Q. Now, what, if anything, did you report to Dr. Baker about your mouth, that is, about the condition of your jawbone? A. I told him my mouth was awful sore; he should look at it and see if anything was wrong; and he looked at it and said, `No, it will get all right.' A. Did he do anything towards setting the jaw? A. No, sir; never done a thing. Q. Did you tell him anything about bones in your mouth? A. Yes, I told Dr. Reed when he pulled my tooth to take a splinter, a piece of meat out of my mouth. He said all right and left it there. Q. Was there any splinters or pieces of bone come out of your jaw? A. Yes, later on. Q. Did you tell Dr. Baker about your jaw being broken? A. No, I don't believe I told Dr. Baker. Q. Well, did you tell Dr. Poe? A. Yes, sir. Q. What did Dr. Poe do when you told him your jaw was broken? A. He Cut on the inside. Q. Did the other man cut on the inside? A. Yes. Q. Did either of them ever take out any pieces of bone? A. No, sir. Q. Did you call Dr. Poe's attention to the pieces of bone still being there? A. Yes, he said it wouldn't hurt, that was all right. Later on the piece of bone worked out. I have some pieces of the bone that came out here. Q. Now, at any time after the extraction of the tooth, up until you discontinued treatment with Dr. Baker and Dr. Poe, did they ever give you any medicine to take internally? A. No, sir; never did. Q. Did they ever give you any medicine or wash to put on your tooth? A. No, sir. I quit treating with them on the 23d of March; was under their treatment about 4½ months.
"Q. Now, during all of that four months, did they give you or do anything for you other than what you have stated? A. Dr. Poe gave me orders not to put anything on my jaw except dry gauze; and dry gauze, so far as I know, is just sort of like a bandage. It is soft like cotton. That's all I know gauze is for. Q. Now, when you quit treating with them, what was the condition of your mouth and jaw? A. Why, it was about the same; it was worse, if anything. Q. Up until that time did you have any trouble opening your mouth? A. No, sir. Q. Did the physician you employed administer any medicine to you? " A. Yes, sir; he gave me something to put on the jaw. Q. How long after you commenced treating with him, commenced taking his medicine, before you got well? A. Well, about a week afterwards the bone worked out and my jaw got a whole lot better; got well after that. It took nearly four months to get well altogether. Q. But after a week or two, what was the amount of the improvement? A. My jaw got a lot thinner inside, and seemed like it would not pain me so much, and the pus and inflammation disappeared. Q. During the time Dr. Baker was treating you, was there pus in your mouth all the time? A. All the time; had to sleep a long time with a...
