Pellett v. Sonotone Corp.

McCOMB, J.—From

a judgment in favor of defendants after trial before a jury predicated upon the granting of defendants’ motions for nonsuits on the grounds that:

(1) Plaintiff’s cause of action was barred by the statute of limitations (subd. 3, § 340, Code Civ. Proc.), and

(2) The evidence failed to disclose negligence on the part of defendants or either of them,

plaintiff appeals. The action is one for damages resulting from the alleged negligence of defendants in failing to remove from plaintiff’s ear all of the plaster of Paris used in making a cast thereof.

Viewing the evidence in the light most favorable to plaintiff (appellant), as we must in reviewing an appeal from a judgment predicated upon the granting of a motion for a nonsuit, the essential facts are:

On or about March 22, 1939, plaintiff agreed to purchase from defendant Sonotone Corporation a hearing device known as an individually moulded “eartip.” March 22, 1939, defendant Brown, an agent of his codefendant Sonotone Corporation, arranged with defendant Compton, a dentist, to make a plaster impression of plaintiff’s ear, which impression was necessary to properly fit plaintiff with the “eartip” he had agreed to purchase. On the date just mentioned defendant Compton placed plaster of Paris in plaintiff’s ear for the purpose of making a plaster impression thereof. This was accomplished by placing cotton pellets in plaintiff’s ear and thereafter pouring plaster into it. After about five minutes defendant Compton removed the cast from plaintiff’s ear. The making of the cast took place in the presence of defendant Brown, to whom it was handed upon removal from plaintiff’s ear. Defendant Brown had been instructed by his codefen

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dant the Sonotone Corporation in the method of taking plaster impressions of an ear.

On the way home from defendant Compton’s office plaintiff complained to defendant Brown that his ear hurt, but was informed such pain was to be expected. Again in October of 1939 plaintiff complained to defendant Brown that his ear hurt, but was informed that he would get used to the “eartip.” February 5, 1940, due to the pain in his ear, plaintiff consulted Dr. Nillson who, upon examination, told him there was a hard substance like stone in his ear, which was subsequently removed and found to be bits of plaster and cotton. The first time plaintiff learned there was a foreign substance in his ear was on February 5, 1940, when Dr. Nillson so informed him.