Brown v. Marshall

• Decision Date: 25 January 1882
• Court: Michigan Supreme Court
• Parties: BROWN v. MARSHALL.

11 N.W. 392

47 Mich. 576

BROWN v. MARSHALL.

Supreme Court of Michigan

January 25, 1882

In an action against a druggist for alleged negligence of his clerk in selling sulphate of zinc for Epsom salts it is not error to allow a medical expert to testify to the effects of sulphate of zinc upon the system from what he has learned from books of recognized authority.

The order of proof in a trial is a matter in the discretion of the judge, and not ground for reversal.

Where a hurtful drug is negligently sold in place of a harmless one and is subsequently taken without fault on the part of the one taking or administering it, a cause of action may arise but recovery cannot be had thereon for injury resulting, not from the drug itself, but from improper treatment or want of due care after it was taken.

An instruction in such case which charges that the druggist is liable for injury resulting from the sale of poisonous drugs without regard as to whether there was any negligence or legal fault on his part, is erroneous.

Error to Kent.

J.W. & O.C. Ransom, for plaintiff in error.

Hughes O'Brien & Smiley, for defendant in error.

COOLEY J.

Marshall sued Brown in case to recover damages for a negligent injury. The facts which she claims to have established on the trial and on which she relied for a recovery are that in February, 1876, being confined to her bed by illness, at her home in Grand Rapids, and desiring to take sulphate of magnesia or Epsom salts, as a medicine, she sent her sister to the store of defendant, who is a druggist in the same city, to procure the salts for her; that her sister called for 10 cents worth of Epsom salts, and was waited upon by one Adsit, a clerk of defendant, who delivered to her what he said was the article she called for, remarking at the time in explanation of an unusual appearance, "It is pure salts, but it is a little dark from exposure;" that the article was taken to plaintiff, who dissolved the same in water and took a portion thereof; that she immediately felt a burning sensation and was very sick, and suspecting something wrong, remedies were at once given as for poison; that what remained of the article she had thus procured was afterwards examined and found to be sulphate of zinc, or white vitriol; that the delivery of this to her sister in response to her call for Epsom salts, was through the gross negligence of defendant's clerk Adsit, and that she was seriously and permanently injured in health thereby.

The case was tried by jury, and a verdict of $1,500 damages returned for the plaintiff. A number of errors are assigned, to the rulings on the admission of evidence. One of these is to permitting a supposed medical expert to testify to the effects of sulphate of zinc when taken into the system, from what he learned on the subject from books of recognized authority. The evidence was not incompetent. Collier v. Simpson, 5 C. & P. 73; Taylor v. Railway, 48 N.H. 304. It was not very satisfactory expert evidence, but its weight was for the jury. Several errors are assigned to the plaintiff being allowed, after the evidence for the defence had been put in, to give testimony of facts which were not rebutting and which should have been given, if at all, as a part of her case in chief. But we have repeatedly decided that we cannot reverse a judgment on this ground. Detroit, etc., R. Co. v. Van Steinberg, 17 Mich. 99; Thompson v. Richards, 14 Mich. 172. The order of proof must be left to the sound discretion of the circuit judge, and it will not be interfered with unless in case of plain abuse. Hoffman v. Harrington, 44 Mich. 183; [S.C. 6 N.W. 225.] Nothing in the record indicates an improper exercise in this case.

The only assignments of error that seem to us to require much attention relate to the charge of the judge on the question of negligence. The defendant insisted that the subsequent treatment of the plaintiff with a view to relieve her of the drug was improper and well calculated seriously to injure her, and he relied upon this treatment as evidence of contributory negligence. It appeared that eggs, milk, sweet oil, brandy, and warm water were administered for the purpose of producing vomiting, and the judge instructed the jury as follows: "If you shall find from the evidence in the case that the giving of large quantities of eggs, milk, sweet oil, brandy, and warm water was the cause of long and continued vomiting, and that said vomiting was the cause of the injury or injuries claimed to have been suffered by the plaintiff, and if you find from the evidence that such treatment was improper, then the plaintiff cannot recover in this action, and your verdict should be for the defendant."

The defendant was not satisfied with this instruction, and requested that the following be given:

"If you should find from a preponderance of evidence in the case that the drug or medicine alleged to have been given to the plaintiff was in fact white vitriol, and you should also find that the same was purchased at the defendant's store, and put up by his agent for and as Epsom salts, and that said drug so purchased was administered to the plaintiff, and that the plaintiff, her nurse or physician, were more or less negligent in administering the same, or in taking care of said plaintiff, and in their treatment of her immediately after said drug had been administered, and that such carelessness or negligence of the plaintiff, her nurse or physician or any person in charge of her, caused or contributed to the injuries alleged to have been sustained--provided you find that any were sustained--then the plaintiff cannot recover in this action and your verdict should be for the defendant.

"If you find from the evidence in the case that white vitriol was in fact sold by the agent of the defendant to the plaintiff, and that the plaintiff took an overdose of the same, yet unless you also find that the injury or injuries claimed to have resulted to the plaintiff were caused solely from the taking of such overdose of white vitriol, and were not caused by improper treatment of plaintiff immediately thereafter by her physician or attendant, plaintiff cannot recover in this action, and your verdict should be for the defendant.

"If you find from the evidence in the case that white vitriol was in fact sold by the agent of the defendant to the plaintiff, and that the plaintiff took an overdose of the same, yet, unless you also find that the injury or injuries claimed to have resulted to the plaintiff were caused solely by the taking of such overdose, and were not contributed to or increased by improper treatment of plaintiff immediately thereafter by her physician or attendants, plaintiff cannot recover in this action, and your verdict must be for the defendant for you must not only be satisfied from the evidence in the case that white vitriol was in fact sold and administered to plaintiff in an overdose so as to make it poison, but you must also be satisfied from the evidence that such injury or injuries--if you are satisfied that any were sustained--were the result of the taking of such overdose, and were not contributed to or increased by such improper treatment; for if such injury or injuries resulted from the mutual fault of the defendant and plaintiff, the law will neither cast all the consequences upon the defendant, nor will it attempt to make any apportionment thereof, and the burden of proof is upon the plaintiff to show that the defendant is wholly in fault."

These three requests were refused. On a careful examination of them it is apparent that they do not direct the attention of the jury to supposed...