Persten v. Chesney
| Decision Date | 22 April 1948 |
| Docket Number | 6701 |
| Citation | 212 S.W.2d 469 |
| Parties | PERSTEN v. CHESNEY et al |
| Court | Missouri Court of Appeals |
'Not to be published in State Reports.'
Scott Scott & Blair, of Joplin, for appellants.
Seiler Blanchard & Van Fleet, of Joplin, for respondent.
VANDEVENTER
This is an action for damages for an injury alleged to have been caused by defendants in permitting a cement or plaster preparation to run down into plaintiff's right ear and harden while defendants were engaged in the operation of making an impression or ear mold of plaintiff's ear.
Defendant J. M. Murdock lived in Kansas City and was doing business as Audiphone Company. Mrs. George B. Chesney, another defendant, lived in Neosho, Missouri, but had an office in Joplin, where she was engaged in the fitting and selling of hearing aids and she, too, was doing business as Audiphone Company. The plaintiff, Bernice Persten, was an employee of defendant Chesney. Mrs. Chesney's office was on the 8th floor of the Frisco Building in Joplin. The petition alleged that on the 12th day of April, 1945, plaintiff was employed as a stenographer and was an assistant to Mrs. Chesney. That defendant Murdock came to the office and that the two defendants decided that the plaintiff should be fitted with 'a receptacle for a hearing aid' in order that she could be better trained to assist the clients of the defendants in properly adjusting hearing aids sold to them. That plaintiff submitted to the request of defendants and permitted them to make a mold of her right ear, including a portion of the ear canal, by pouring a quick hardening cement into the canal of her right ear. That the defendants placed some cotton in the ear canal, mixed and poured the cement into her right ear; that because of the cement running down into her inner ear and becoming hardened, it was necessary for her to be taken by defendants to a specialist to have the cement broken up and removed. It was further alleged that the proper method of making an ear mold was to block the passage into the inner ear so that cement to be used in making the mold could not get into the inner canal and to make the mixture thick enough that it would not run through or around the material used to block the passage into the inner canal. That the defendants were in the exclusive charge of making the ear mold and that they carelessly and negligently failed to block the passage into the canal of her inner ear or failed to mix the cement properly or both and that as a direct and proximate result of defendant's negligence, the cement was permitted to run into her inner ear and become hardened. That it was necessary to have it removed in small pieces, which took approximately two hours and as a result thereof, she suffered excruciating pain, her right ear drum was destroyed, inflammation set up in the inner ear and continued to remain there and that the injuries were of a permanent nature. That she was required to be under the care of a doctor for two months following the accident during which time she suffered great pain and that as a result of the destruction of the ear drum, the plaintiff had suffered permanent loss of the hearing of her right ear of approximately fifty percent and that this condition would probably get worse. That as a result of her injury, she was susceptible to inflammation of her ear following exposure to cold or wind, which caused her to have headaches. That as a further result of the injuries, she would, in all probability, be required to undergo an operation at great expense and that she would suffer pain and anguish in the future. She prayed judgment in the sum of $ 10,000.
For answer the defendants denied any negligence on their part and pleaded contributory negligence on the part of plaintiff. It was asserted that plaintiff requested that the mold be made and that the defendants agreed to make it and that during the operation it was necessary for plaintiff to lie down on her left side with her right ear up and that she was instructed by defendants not to move or to talk while they made the impression. That they blocked the ear canal with a small piece of cotton, larger than the canal, which was tightly placed therein so that the cement could not penerate beyond the cotton block. That after this was placed in the ear by defendant Murdock, Mrs. Chesney inspected and checked the packing, finding that it had been tightly packed in the ear canal so as to prevent any substance poured on top of said cotton from passing around same to plaintiff's ear drum. That defendant Murdock then mixed a dental plaster called 'gelum' with water to a consistency of a thick malted milk, which was poured into the plaintiff's ear. That immediately after this mixture was poured into the ear and while defendant Murdock had his back turned to the plaintiff, she arose to a sitting position and began talking, whereupon Mrs. Chesney ordered her to quit talking and lie down, with which order she complied. That after said mixture had hardened, the impression was removed from plaintiff's outer right ear canal and it was found that there was some of the plaster or cement in the ear canal beyond the cotton block. That plaintiff was immediately taken to her physician and the plaster removed by being broken into small pieces by the use of a hammer and chisel and that if plaintiff were injured (which was denied) it was directly and proximately caused by negligence on the part of plaintiff in sitting up and talking while the plaster fluid was in her right ear and before it had hardened and that plaintiff was further negligent in permitting the doctor to treat her and remove the plaster by the use of a hammer and chisel.
The case was tried to a jury, which returned a verdict for $ 2500 in favor of the plaintiff. At the close of the plaintiff's evidence and at the close of all the evidence, motions for directed verdicts were filed and overruled. The main contention of appellants here is that the court erred in not sustaining these motions.
In passing upon this contention it is our duty, where the jury has found for the plaintiff, to take all of plaintiff's evidence as true when not entirely unreasonable or opposed to physical laws, to give plaintiff the benefit of all favorable inferences arising therefrom and also from defendant's evidence and to disregard all of defendant's evidence which is in conflict with plaintiff's or fails to strengthen plaintiff's case. Sollenberger v. K. C. Public Service Company, 356 Mo. 454, 202 S.W.2d 25, and cases cited; Evans v. Clapp, Mo.App., 231 S.W. 79.
Bearing this rule in mind the evidence to sustain the plaintiff was that on the 12th day of April, 1945, and for several weeks prior thereto, plaintiff had been working for defendant Chesney as an office girl and to some extent assisted in the sale of hearing aids. On that day she first met defendant Murdock, who lived in Kansas City. He was a wholesaler, as well as a retailer, of hearing aids and was doing business in Kansas City as the Audiphone Company. Defendant Chesney sold hearing aids at retail and purchased them from Murdock and she was doing business as the Audiphone Company at Joplin. Murdock had come down to Joplin to discuss business affairs with Mrs. Chesney and also to demonstrate a new audiometer, which was an instrument for measuring the sound perception of customers. During the day the defendants suggested that they take an impression of plaintiff's ear so they could prepare a plastic receiver to be used by plaintiff in better demonstrating and servicing hearing aids to customers of Mrs. Chesney. She agreed to it and later in the afternoon, she was instructed to lie down on a couch on her left side to have the impression taken and the mold prepared which was to be made out of a plaster or cement, known as 'gelum.'
A ball of cotton was placed in the canal of her right ear. Defendants then discussed whether oil should be put on the cotton and in the ear canal, Mrs. Chesney saying that it should be and Murdock contending that it was not necessary. The ball of cotton was placed in the ear by Mr. Murdock inspected, checked and approved by Mrs. Chesney and by her declared to be all right. Murdock then mixed the cement in liquid form to pour in the ear to cast the mold. Mrs. Chesney remonstrated with him, asserting that the mixture was too thin and Murdock contended his mixture was proper but that Mrs. Chesney had been preparing it took thick. After the mixture was prepared, some of it was poured in plaintiff's right ear and disappeared. More was poured in, which also disappeared and then the canal and outer portion of the ear were filled with the liquid cement. It was allowed to harden for perhaps ten minutes, after which time the plaintiff sat up and the mold and cotton were removed from the ear. It was then discovered by Mr. Murdock, after plaintiff complained of a stuffy feeling in her ear, that some of the plaster had run through or around the cotton packing and on down into plaintiff's inner ear canal. The defendants then became very much agitated and stated that plaintiff should be immediately taken to a doctor. Two doctors on the same floor of the building were found to be absent from the offices but finally Dr. Fossum on the 3rd floor was located by using the classified telephone directory. The plaintiff called him by phone and Murdock talked to him. Murdock made arrangements to take the plaintiff down to Fossum's office, which he and defendant Chesney did. Plaintiff was not acquainted with Dr. Fossum. The doctor examined the ear and discovered that it was filled with plaster or cement. Defendant Murdock, in the presence of Mrs. Chesney, told Dr. Fossum to treat the plaintiff and he would pay the bill. It required almost two hours to...
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