Brunswig v. White

• Decision Date: 20 April 1888
• Citation: 8 S.W. 85
• Parties: BRUNSWIG <I>et al.</I> v. WHITE <I>et ux.</I>
• Court: Texas Supreme Court

8 S.W. 85

BRUNSWIG et al. v. WHITE et ux.

Supreme Court of Texas.

April 20, 1888.

Appeal from district court, Tarrant county.

Action for the wrongful death of their minor daughter by E. L. and C. E. White against L. N. Brunswig & Co., druggists, caused by the negligent sale of morphine instead of quinine. Verdict and judgment for plaintiffs, and defendants appeal.

Ball & McCart, for appellants. Furman & Steadman and Carter & Wynne, for appellees.

WALKER, J.

E. L. and C. E. White, the parents of Chalcy White, their daughter, about six years old at her death, sued appellants for damages for negligently causing her death. Appellees, in their petition, allege, in substance, that they were on the 30th day of August, 1883, husband and wife, the parents of said infant, who was about six years old; that on said day appellants were wholesale and retail druggists, doing business in the city of Fort Worth; that on the 29th day of August, 1883, their said child being sick, appellee E. L. White told his brother, George White, who was on that day going to said city, that he had better get a bottle of quinine; that accordingly said George White did, when he arrived in said city, apply to the agent and servant of appellants, one H. D. Ramsey, for quinine, which was a wholesome and harmless drug; but that said Ramsey negligently and carelessly sold and delivered to said George White a poisonous drug known as "sulphate of morphia," commonly called "morphine;" that said George White received said drug believing it to be quinine, and paid for it out of money belonging to him and E. L. White as partners; that in applying for quinine the design on the part of said George White was to procure the same for the common benefit of his own family and that of E. L. White, all of whom lived in one house, and used together any quinine that might be on hand; that neither plaintiff nor said George White knew that said drug was anything but quinine; that said drugs of morphine and quinine closely resemble each other, and the appellees and said George White, not being experts nor able to test the quality of drugs, relied wholly on the representations of said Ramsey as to the character of the drug delivered, and so relying they did administer the same to their said child in such quantity that it produced and caused her death, the dose being a reasonable and proper one had the drug been quinine as represented, — alleging damages as follows: $50 for medical attention, and $7,500 for the loss of her services from the time of her death until she would have arrived at the age of 21 years. Appellants answered by general and special demurrer, setting up as ground of special demurrer that the petition failed to show any privity of contract between plaintiffs and defendants, or between defendants and the deceased; defendants also pleaded contributory negligence on part of plaintiffs, and on part of George White, their agent. The demurrer was overruled. Trial, and judgment had for plaintiffs for $1,500.

The petition alleged facts showing the contract relations between plaintiff E. L. White, as customer, with the defendants, as druggists; the sale and delivery of the morphine instead of quinine; that, relying upon the declaration of the druggist clerk that the drug was quinine, and believing it to be quinine, the plaintiffs had administered it to their daughter, from the effect of which she died. This makes a cause of action.

The charge of the court submitted the facts in evidence with suitable definitions of the degrees of carefulness required of druggists and of the customer; that plaintiffs could not recover if their negligence had contributed to the death of the child. Upon the measure of damages the rule was given: "If you find for the plaintiffs you will find for them such damages as you may think proportioned to the injury resulting from the death of the child, not to exceed, however, the sum expended in an effort to have her relieved from the effects of the morphine, and the reasonable value of the services of the child from the time of her death until she would have attained the age of twenty-one years, not to exceed the sum sued for. Neither physical nor mental suffering of the deceased child, nor the mental anguish of the parents in consequence of the death of their child, are items or elements of damages to be considered by you. And the value of the child's services during the period of her minority (if you should find for plaintiff) is to be ascertained by you as best you can from your own judgment, common sense, and sound discretion, and the evidence before you." And further: "If * * * [the druggist clerk] did not sell the drug to George White at all, or if he did sell it to him, yet he sold to him the article called for, then the plaintiffs cannot recover. * * * The burden of proof is on the plaintiff to show that the drug was purchased from defendants, and that quinine was asked for, and that it was sold and represented to be quinine."

The defendants insist that the court erred in refusing to charge the jury that if "George White was guilty of negligence in failing sufficiently to examine the label upon the bottle in question after he received the same, and that if he had examined the label the fact that the bottle did not contain quinine would have been discovered, and that such negligence contributed to the injury." The testimony showed that at request of plaintiff E. L. White, his brother George had bought the drug, expecting to get quinine; that returning from town he produced the bottle containing the drug, telling plaintiff what the druggist clerk had said about it; that he put it upon the mantle-piece, from which it was taken when the dose was prepared for the child. George White testified that he asked for quinine, and that he was assured by the druggist clerk that it was the best quality of French quinine. It also appears that after the family became alarmed at the effects of the drug, George White took the bottle to a physician to know what was its contents. The clerk testified that he had no recollection of having sold the bottle; that if he did so, he had delivered what was called for; that there was no French quinine in the shop, and that the two drugs were kept in separate places, some distance apart; that ounce bottles of both were wrapped in blue paper, and that it was not usual to examine contents of bottles or packages sold in bulk. Upon this state of facts, even if the charge asked had not been obnoxious in declaring as matter of law that the failure of George White to notice the label, and that such examination would have disclosed the danger, constituted contributory negligence, still it was not warranted. The part performed by George White as the medium between plaintiffs and the defendants was, on the one hand, to buy; and on the other, to receive and bring home. No call is made by the testimony for the action of the jury to ascertain the proper care on his part further than was given,—that if he got what he called for from the druggist the plaintiffs could not recover.

The eighth assignment challenges the correctness of the charge upon the mode of...