Gerber v. Day — 119 Cal. App. 446

Majority

p. 446

[Civ. No. 6925.

Second Appellate District, Division One.

December 29, 1931.]

JESSIE F. GERBER et al., Appellants, v. Dr. EMORY C. DAY, Respondent.

Rosenthal & Rosenthal and Nelson & Burns for Appellants.

Head, Wellington & Jacobs for Respondent.

This is an appeal from a judgment of nonsuit, in an action for alleged malpractice brought against the defendant and respondent, a practicing physician and surgeon. The complaint alleged that the death of one Charles J. Gerber, who was the husband and father of the plaintiffs respectively, was caused by the failure of respondent to administer tetanus antitoxin serum in time to prevent an infection of tetanus. At the close of plaintiff’s case, a motion for nonsuit was made, upon the ground that the evidence was insufficient to establish the plaintiffs’ case.

It is the undisputed evidence that the deceased came to the defendant for treatment, after sustaining an' injury, and that when the wound was being dressed, the

p. 447

defendant instructed decedent to procure some tetanus antitoxin serum and bring it back immediately, and for that purpose gave him a note to the druggist; that the deceased demurred to its administration, but took the prescription and failed to have the same filled; that at that time, defendant did not know where the patient lived; that on the next day defendant being called to the house of the decedent, he discovered that the prescription had not been filled; that defendant sent the prescription out to be filled and the serum was administered immediately by the defendant, but the administration was too late, and the patient died from a tetanus infection.

There is nothing in the evidence to show any dereliction of duty on the part of the defendant physician and surgeon. No dereliction of duty being shown on the part of the physician, the motion for nonsuit was properly granted.

The judgment is affirmed.

Conrey, P. J., and Houser, J., concurred.