McLeod v. W. S. Merrell Co., Division of Richardson-Merrell, Inc., RICHARDSON-MERREL
| Decision Date | 05 May 1965 |
| Docket Number | INC,RICHARDSON-MERREL,No. 33909,33909 |
| Citation | 174 So.2d 736 |
| Parties | John McLEOD, Petitioner, v. W. S. MERRELL COMPANY, DIVISION OF, International Pharmacles, Inc., and James Drug Shop, Inc., Jointly and severally, Respondents. |
| Court | Florida Supreme Court |
Nichols, Gaither, Beckham, Colson & Spence, Alan R. Schwartz and Robert Orseck, Miami, for petitioner.
Walton, Lantaff, Schroeder, Atkins, Carson & Wahl, Miami, for W. S. Merrell Co., Div. of Richardson-Merrell, Inc., Sherouse & Corlett and Richard M. Gale, Miami, for International Pharmacies, Inc., Blackwell, Walker & Gray, Miami, for James Drug Shop, Inc., respondents.
By petition for a writ of certiorari we are requested to review a decision of the Court of Appeal, Third District, which passes upon a question certified by that court as being one of great public interest.
We must decide whether a retail druggist who properly fills a prescription of a medical doctor with an unadulterated drug is liable to the patient-purchaser for breach of an implied warranty of fitness or merchantability if the drug produces harmful effects on such purchaser.
Petitioner McLeod's physician prescribed for his use a drug known as 'Mer/29'. It had been advertised as a commodity for controlling body cholesterol. The drug was manufactured by W. S. Merrell Co. It was sold by the manufacturer to the respondents International Pharmacies, Inc. and James Drug Shop, Inc., for resale to the public only on prescriptions of medical doctors. The respondents International and James filled the prescriptions presented to them by petitioner McLeod. The prescriptions were filled strictly in accordance with instructions of the doctor.
It was stipulated that Merrell had prepared the drug and that the retail druggist respondents had received it in the original sealed packets; that the drug was sold at retail to McLeod in the original unbroken containers without analysis by the druggists; that the use of the drug had been prescribed for the petitioner McLeod by his personal physician.
By a three-count complaint, McLeod, as plaintiff in the trial court, sued Merrell, the manufacturer, and the two respondent retail druggists. The retailers were named only in the third count. It was alleged that although intended as a remedial control of cholesterol, the drug 'Mer/29' actually exposed the user to a grave risk of harm when used in ordinary dosages, by causing severe side effects, such as the formation of cataracts and other eye damage. There was no warning by any of the respondents suggesting a possible inherent danger in the use of the drug.
The third count of the complaint charged the three defendants, the manufacturer and the two retailers, with breaches of implied warranties, of (1) reasonable fitness for the intended purpose; (2) merchantability; and (3) wholesomeness or reasonable fitness for human consumption. The third count was dismissed as to the respondent retail drug stores. The trial judge had the view that a retail druggist does not warrant the inherent fitness of drugs he sells on prescription. On appeal, the Court of Appeal, Third District, affirmed the action of the circuit judge. McLeod v. W. S. Merrell Co. et al, 167 So.2d 901. The decision comes to us with the certificate of the Court of Appeal to the effect that it passes upon a question of great public interest 'because it affects the law of warranty relating to drugs sold by a druggist pursuant to a doctor's prescription.' The respondents are the two retail druggists. The manufacturer Merrell is not a party here.
Since the petition for certiorari is buttressed by the certificate of the Court of Appeal, we proceed directly to the merits without a preliminary consideration of jurisdictional problems.
Certain aspects of the implied warranty problem may be laid aside at the outset. The instant suit does not involve: (1) an action against a manufacturer; (2) adulteration of a commodity by spoilation or the presence of a foreign substance; (3) a product for human consumption available indiscriminately to the public generally; and, (4) a purchase for a particular purpose with reliance upon the druggist to supply a commodity fit for such purpose.
It may be well to note also that we are not here dealing with a complaint grounded in negligence.
By contrast to the foregoing, we should examine the instant record within a narrow orbit circumscribed by the salient facts, which are: (1) an action against a retail druggist; (2) the drug was available only to a limited segment of the public who could present a medical doctor's prescription therefor; (3) the prescription was filled precisely in accordance with its directions, and even then, in the manufacturer's original packet; (4) there was no adulteration; (5) both the patient-purchaser and the retail druggist relied upon the doctor's prescription,...
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...57, 58-59 (1977) (warranties are not implied, as patient places confidence in doctor's skill, not pharmacist's); McLeod v. W.S. Merrell Co., 174 So.2d 736, 738-39 (Fla.1965). c. Count V Illinois Consumer Fraud To state a cause of action under the Illinois Consumer Fraud Act, five elements m......
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