Davis v. Guarnieri

• Decision Date: 13 December 1887
• Parties: DAVIS v. GUARNIERI.
• Court: Ohio Supreme Court

15 N.E. 350

45 Ohio St. 470

DAVIS v. GUARNIERI.

Supreme Court of Ohio.

December 13, 1887

[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Error to circuit court, Summit county.

Nicola Guarnieri, administrator of the estate of Angela Guarnieri deceased, brought his action against the plaintiff in error, William P. Davis, in the court of common pleas of Summit county, wherein, by his second amended petition, he alleges that ‘ on the ninth day of January, A. D. 1882, at Akron, Ohio, the said Nicola Guarnieri applied to the defendant, who was then and there engaged in the business of selling drugs and medicines, and filling prescriptions, which application was then and there made to defendant through his agent,-one Forester J. Foster,-and requested defendant, through his agent aforesaid, to put up and sell to him twenty cents worth of the oil of sweet almonds, to be administered to his wife, Angela Guarnieri, as a physic; and the defendant, by his said agent, then and there undertook to fill said order, and to sell him, Nicola Guarnieri, said medicine for his wife; and defendant did then and there pretend to fill said order, and to sell to him said twenty cents' worth of the oil of sweet almonds, for Angela Guarnieri, as requested; yet defendant, by his said agent, did so carelessly and negligently put up said medicine, and make said sale, that instead of putting up the oil of sweet almonds, as was called for, he put up and sold to him twenty cents' worth of a certain poisonous drug called the ‘ oil of bitter almonds,’ to-wit, about one-half ounce thereof; and the same was wrongfully, negligently, and carelessly sold and delivered to him for his wife, by defendant, through his said agent, instead of the medicine called for; and Angela Guarnieri, without any fault or neglect on her part, took the oil of bitter almonds so put up and sold by defendant as aforesaid in the same manner and quantity that she would have taken the oil of sweet almonds, and at the same time supposing it to be such; and the said Angela Guarnieri afterwards, to-wit, on the ninth day of January, A. D. 1882, died from the effects of the said oil of bitter almonds, so sold by defendant, and so taken by her as aforesaid. And plaintiff says, on the twenty-fourth day of January, A. D. 1882, he was duly appointed and qualified as administrator of the estate of Angela Guarnieri, and that the said Angela Guarnieri left Nicola Guarnieri, her husband, and Mary, Victoria, Nicola, Angela, and George Guarnieri, her children, as her next of kin, to the damage of plaintiff five thousand dollars.'

Davis, by his answer, alleges that ‘ he admits that on January 9, 1882, he was engaged in the business of selling drugs and medicines, and of filling prescriptions. As to whether plaintiff is, and was at the time of the commencement of this action, the administrator of Angela Guarnieri, the defendant has no knowledge. He denies the same, and demands strict proof thereof. He admits that on or about January 9, 1882, Angela Guarnieri died, but as to the cause of her death the defendant, in the absence of knowledge, demands strict proof. He avers that if said Angela Guarnieri died from the effects of taking oil of bitter almonds, then her death was caused by her own negligence, and that of her husband; and he further avers that if such be the fact, such drug was administered by her husband, Nicola Guarnieri, upon his own responsibility, and without any knowledge upon defendant's part that it was bought for or to be administered to her; and he says that whatever drug was purchased by Nicola Guarnieri at defendant's store was just what he selected, and said he wanted, and purchased upon his own judgment; and if any careless use was made of it after it was purchased, the whole fault in purchasing and using it was with said Nicola and Angela Guarnieri. He denies every allegation, averment and statement contained in said amended petition, except such as are above expressly admitted to be true.’ By his reply the plaintiff denied every allegation of the answer, except its admissions.

The issues were tried to a jury, which returned a general verdict of $1,000 for the plaintiff, and also a special verdict in the form of interrogatories submitted by both parties. Upon the following facts there was no substantial conflict in the evidence: That Foster was the agent and salesman of the defendant; that the oil of sweet almonds is a bland and harmless drug; that the oil of bitter almonds is a deadly poison; that Guarnieri was an Italian, who but imperfectly spoke and understood the English language; that his purpose in going to the drug-store was to purchase some oil of sweet almonds, to be taken by his wife as a physic; that she had just become a mother, and had been accustomed, both in Italy and in this country, to take the same medicine for the same purpose on all such occasions, which had been quite numerous; and that she expressed to her husband a desire to have some of it procured for her, without any other direction as to its purchase; that the bottle which contained the bitter oil was not labeled ‘ poison,’ nor otherwise, so as to indicate dangerous qualities; that the bottle in which the bitter oil was delivered to Guarnieri was labeled simply ‘ oil of almonds; ’ that the wife, who was still confined to her bed, drank from this bottle in the belief that it was the bland oil, and that almost immediately she died from its effects, leaving her husband and the children named in the petition. Upon the remaining issues in the case there was conflict in the evidence; its tendency, on the one hand, being to sustain the plaintiff's case; and, on the other hand, to sustain the defense. There was no evidence tending to prove that the plaintiff informed Foster for whom he was purchasing the drug, but it did tend to prove that he informed him it was to be used as physic. Upon this fact, however, there was sharp conflict in the proofs. The evidence conflicted concerning the similarity or dissimilarity of the respective odor of the bland and bitter oil; but upon this issue the jurors were each permitted to smell of a sample of each. The verdict of the jury is in the following words: ‘ We, the jury impaneled and sworn to try this action, do find the issues with the said plaintiff, and do assess his damages at $1,000. J. W. HUDSON, Foreman.’

And in response to the several questions propounded to them by the plaintiff, and at his request, now return the same with their special findings thereon, as follows, to-wit: ‘ (1) Did Guarnieri know, at the time he purchased the poison, that the same was a poison?’ ‘ No.’ ‘ (2) Did Foster know, at the time he sold the drug, that the same was a deadly poison?’ ‘ We are of the opinion, from the evidence, that he did not know. J. W. HUDSON, Foreman.’ And in response to the several questions propounded to them by the said defendant, and at his request, now return them with their special findings thereon as follows, to-wit: ‘ (1) If Guarnieri purchased the drug of Foster, then was he, Guarnieri, acting for himself or as the agent of his wife?’ ‘ For himself.’ ‘ (2) Did Guarnieri make known to Foster, when he got the drug, what he wanted it for, and that it was to be taken as a medicine?’ ‘ Not intelligently.’ ‘ (3) Did Guarnieri make known to Foster, when he got the drug, to whom he intended to administer it?’ ‘ Not intelligently.’ ‘ (4) Was the large bottle, containing oil of bitter almonds, handed to Guarnieri by Foster?’ ‘ Yes.’ ‘ (5) If so, did Guarnieri look at it, and smell of it?’ ‘ Yes.’ During the trial physicians were permitted to testify, against the objection of the defendant, that the words ‘ oil of almonds' upon the label which Foster placed upon the bottle he delivered to the plaintiff indicated, in their opinion, the bland oil,-oil of sweet almonds.

2. The defendant offered to prove by cross-examination of the plaintiff that in the month of October following the death of the intestate the husband remarried another wife; that that wife was a strong, healthy woman,-took her into his family,-and she performed all the ordinary and proper services of a wife in taking care of the household for her husband; that she was faithful in every respect in taking care of the children of his deceased wife,-in every respect as a proper and suitable mother would take of her children; that she aided him in carrying on his business to the same extent, and fully supplied the place of his deceased wife; and that he has ever since lived with her, and is still living with her. This was ruled out and excluded by the court, to which ruling exception was taken by the defendant. The fact was shown, however, that the plaintiff had remarried, and that his second wife assisted him in his business.

3. Upon the same subject the defendant requested the court to give the following instructions to the jury: ‘ In estimating and assessing damages it is competent for you to consider the fact that Nicola Guarnieri married again in the month of October, 1882; that his wife was able, willing, and did in fact render service to her husband and to the children of the deceased; and if such services reduced the pecuniary loss of both husband and children, such fact should be considered by you, and given such weight as you think proper.’ Which request the court refused; to which refusal the defendant excepted.

4. During the closing argument counsel for the plaintiff stated to the jury that he desired to read from a book known as ‘ Malpractice and Medical Evidence,’ by Elwell some excellent suggestions on this subject, made by the American Pharmaceutical Association, at their annual meeting held in Philadelphia, in September, 1857, in an appeal brought...