Blood Balm Co. v. Cooper

• Decision Date: 14 October 1889
• Citation: 10 S.E. 118,83 Ga. 457
• Parties: BLOOD BALM CO. v. COOPER.
• Court: Georgia Supreme Court

10 S.E. 118

83 Ga. 457

BLOOD BALM CO. v. COOPER.

Supreme Court of Georgia

October 14, 1889

Error from city court of Atlanta; VAN EPPS, Judge.

Hillyer & Bro., for plaintiff in error.

Hall & Hammond, for defendant in error.

BLANDFORD J.

1. The main question in this case arises upon the refusal of the court below to award a nonsuit, and the solution of this question depends upon whether, where one prepares what is known as a proprietary or patent medicine, and puts it upon the market, and recommends it to the world as useful for the cure of certain diseases, the bottle containing it having therewith a prescription made by the proprietor of the medicine, in which he states that it is to be taken in certain quantities, and such medicine, accompanied with this prescription, is sold by the proprietor to a druggist for the purpose of being resold to persons who might wish to use it and the druggist sells the same to a person, who uses it in the quantity thus prescribed, and it being shown that the same contains a certain article known as the iodide of potash in such quantity as proves harmful to the person thus using is the proprietor liable? The plaintiff in error insists that there is no liability on the part of the proprietor, (1) because it was not sold by the proprietor to the person injured, but by a druggist, who had purchased the same from the proprietor, (and several cases are cited to sustain this position;) (2) because the drug thus sold was not imminently hurtful or poisonous.

We are not aware of any decision of this court upon this question. Indeed, there is none; and we have searched carefully, not only the authorities cited by counsel in this case, but others, and we find no question like the one which arises in this record, determined by any court. In the case of Thomas v. Winchester, 6 N.Y. 397, 57 Amer. Dec. 455; 1 Thomp. Neg. 224,--referred to by counsel in this case, the question decided was that a dealer in drugs and medicines who carelessly labels a deadly poison as a harmless medicine and sends it so labeled into market, is liable to all persons who, without fault on their part, are injured by using it as such medicine in consequence of the false label. This comes nearer the present case than any we have been able to find, and it is relied upon by both parties as an authority; and in the notes thereto by Mr. Freeman, in the American Decisions, the cases relied upon by counsel in this case are embraced and referred to, and to some extent considered. It is not denied by counsel in this case that the doctrine cited (Thomas v. Winchester) is sound and correct law, but the present case differs from that case, and mainly in this: There the drug sold was a deadly poison, and the wrong consisted in putting a label upon the same which indicated that it was a harmless medicine; whereas in this case the medicine sold was not a deadly poison, and no label was put upon it which was calculated to deceive any one in this respect. But accompanying this medicine was a prescription of the proprietor, stating the quantity to be taken; and the evidence tended to show that the quantity thus prescribed contained iodide of potash to such an extent as, when taken by the plaintiff, produced the injury and damage complained of. The liability of the plaintiff in error to the person injured arises, not by contract, but for a wrong committed by the proprietor in the prescription and direction as to the dose that should be taken. We can see no difference whether the medicine was directly sold to the defendant in error by the proprietor or by an intermediate party to whom the proprietor had sold it in the first...