Cox v. Laws, 42405

• Decision Date: 29 October 1962
• Docket Number: No. 42405,42405
• Citation: 244 Miss. 696,145 So.2d 703
• Parties: Mrs. Alma COX et al. v. John D. LAWS et al., d.b.a. Laws Drug Store.
• Court: Mississippi Supreme Court

Page 703

145 So.2d 703

244 Miss. 696

Mrs. Alma COX et al. v. John D. LAWS et al., d.b.a. Laws Drug Store.

No. 42405.

Supreme Court of Mississippi.

Oct. 29, 1962.

James E. Brown, Jackson, for appellants.

Burgin & Gholson, Wm. J. Threadgill, Columbus, for appellees.

RODGERS, Justice.

This is a products liability suit growing out of the sale of a tube of penicillin ointment drug, alleged to have caused the death of the purchaser's husband.

Appellant, Mrs. Alma Cox, wife of Julius Cox, deceased, and mother of the other appellants, brought a suit in the Circuit Court of Lowndes County, Mississippi, in her own right and as next friend for her children, against appellees, owners and partners in a business known as Laws Drug Store.

The declaration alleges that Mrs. Alma Cox purchased from a registered pharmacist, employee of defendants, a tube of penicillin ointment, without a physician's prescription, and te words 'Caution: Federal Law prohibits dispensing without prescription' were clearly imprinted upon the carton containing the ointment. It is further alleged that the sale was in violation of Section 503(b) of the Federal Food, Drug and Cosmetic Act, (Title 21 U.S.C.A. § 353(b)(1)(B)), governing and regulating the sale of all drugs being toxic or otherwise potentially harmful in their use, and alleging that any drug containing any quantity of penicillin is governed and regulated by the foregoing Federal Act; that the employee-pharmacist was acting within the scope of his employment, and that he knew, or should have known, the dangerous propensity of the drug penicillin when applied externally to human beings.

It is further alleged that within forty-eight hours after the sale of the drug to Mrs. Alma Cox, her husband Julius Cox used some of the penicillin ointment on a wound on his leg, and that he died within a few minutes thereafter as a result of anaphylactic reaction to the drug. It is charged that it was the duty of the druggists to inform themselves as to the danger of penicillin, and that to sell the drug without a doctor's prescription was negligence; that defendants owed a duty to conduct their business so as not to injure others; that the unlawful sale of the drug to Mrs. Cox was the proximate cause of the death of her husband.

Defendants demurred to the declaration upon the grounds that (1) the declaration did not allege a privity of contract; and (2) the death of decedent was not caused by any act of defendant, but was the result of an independent, intervening cause. The demurrer was sustained by the trial judge, and when plaintiff failed to plead over, a final judgment was entered dismissing the suit. Plaintiffs appealed to this Court, seeking a reversal upon the theory that the allegations of the declaration are sufficient to charge a cause of action.

We proceed at once to the heart of this case on appeal. The real question to be determined by this Court is whether or not the time-worn 'privity of contract doctrine' will bar a recovery under the facts alleged in this case. We have come to the conclusion that it does not, and a discussion of our reasons therefor follows:

We do not believe it is necessary at this time to upset the former opinions of this Court requiring privity of contract as a prerequisite to a cause of action, as is here asserted by appellee, in order to solve the problem here presented, as will be more fully developed hereafter.

The declaration in this case charges that defendants owed deceased a duty; that this duty was negligently violated by their employee, and that as a proximate result thereof deceased lost his life, for which defendants owe damages to plaintiffs. Defendants asserted that since they did not sell the drug to deceased, there was no 'privity of contract' with deceased and therefore there is no liability on defendants for the alleged neglect of duties.

The privity of contract rule is said to be a general rule of law, that a manufacturer or seller of a product alleged to have caused injury cannot be held liable therefor, on the ground of negligence to one with whom he is not in privity of contract. The rule has come down to us through many decisions in England, as well as State and Federal Courts of the United States. Mississippi has followed these precedents as shown by the list of cases set out in two recent opinions by this Court. See Harrist v. Spencer-Harris Tool Co., et al., Miss., 140 So.2d 558 (1962); E. I. DuPont de Nemours & Company v. Ladner, 221 Miss. 378, 73 So.2d 249 (1954). See also 38 Am.Jur., Sec. 21, p. 662.

The origin of this doctrine is said to be the English case of Winterbottom v. Wright, 10 Mees & W. 109, 152 Eng. Reprint 402 (1842). See American Law of Products Liability of Hursh, Sec. 6:14, p. 530. The Winterbottom case has been criticized by law-writers and judges, to the end that a majority of the courts have broken away from the privity of contract rule. See Anno., 74 A.L.R.2d, Sec. 55, p. 1215; American Law of Products Liability by Hursh, Sec. 6:15, p. 583, Sec. 6:62, p. 670; and E. I. DuPont de Nemours & Company v. Ladner, supra.

Numerous exceptions have been grafted upon the rule. One of the earliest of these exceptions was enunciated in the case of Thomas v. Winchester, 6 N.Y. 397, 57 Am.Dec. 455 (1852). This case grew out of a mislabeling of a jar of belladonna sold by a drug manufacturer to a retail druggist, then to plaintiff, resulting in his injury. The Court said that the death or great bodily harm of some person was a natural and almost inevitable consequence of the sale of belladonna by means of the false label, and that defendant's neglect put human life in imminent danger. The exception announced in this case is generally referred to as the 'inherently dangerous product rule.' The manufacturer and seller of inherently dangerous products under this rule may be held liable on the grounds of negligence in an action for an injury, notwithstanding there is no privity of contract between defendant and the injured person. Harrist v....