Burgess v. Sims Drug Co.

Citation86 N.W. 307,114 Iowa 275
PartiesBURGESS v. SIMS DRUG CO. ET AL.
Decision Date27 May 1901
CourtUnited States State Supreme Court of Iowa

OPINION TEXT STARTS HERE

Appeal from district court, Polk county; C. P. Holmes, Judge.

The defendants, W. D. Sims and George C. Sims, are sued, as partners doing business under the firm name of the Sims Drug Company, to recover damages for injury alleged to have resulted to plaintiff from the negligence of defendants in putting up a prescription of medicine to be used in plaintiff's eye, the use of which resulted in injury to the eye and loss thereof. Defendants deny the negligence alleged, and aver that the prescription complained of was filled by a skilled, competent, and duly-registered pharmacist in their employ. Verdict and judgment for plaintiff for $900. Defendants appeal. Affirmed.Spurrier & Maxwell, for appellants.

Vernon O. Ford and Carr & Parker, for appellee.

McCLAIN, J.

1. Appellants contend that, having employed a skillful, registered pharmacist, they are not liable for his negligence, if any there was, in filling the prescription, and cite as illustrations cases in which it has been held that a railroad company contracting with an employé to furnish surgical aid and attendance in case of accident was not liable for the negligent acts of the surgeon thus selected and furnished, if due care and diligence were used in the selection (Maine v. Railroad Co., 109 Iowa, 260, 70 N. W. 630, 80 N. W. 315), and that a bank to which a draft is sent for collection is not liable for the negligence of the notary public to whom the draft is delivered for protest (First Nat. Bank of Manning v. German Bank of Carroll Co., 107 Iowa, 543, 78 N. W. 195, 44 L. R. A. 133). These cases, we think, are not analogous. It was the duty of the railroad company by express contract in the one case, and the duty of the bank by implied contract in the other case, to secure for the other party professional services, which neither the railroad company, in the one case, nor the bank, in the other, held itself out as competent to perform. The railroad company did not pretend to be a surgeon, nor the bank to be a notary. But these defendants did pretend to be druggists, and held themselves out as able and willing to fill prescriptions. Whether they performed the services individually or by the aid of an employé was immaterial. The master who undertakes to perform a service is liable for the negligence of his servant in performing the service undertaken. This proposition is too elementary to require the citation of authorities. It is true that the legislature has provided, as a police regulation for the protection of the public, that no one who is not a registered pharmacist shall fill prescriptions; but when the defendants undertook, as a part of their regular business, that the prescription should be filled, it was wholly immaterial to the customer, so far as defendants' liability was concerned, whether the prescription was filled by one of the defendants or by an employé. McCubbin v. Hastings, 27 La. Ann. 713. In Martin v. Temperley, 4 Q. B. 298, it was held that defendant was liable for injury done by barges belonging to him navigated by persons specified by statute as qualified for such purpose, and selected by defendant. The court held that the statutory limitation of defendant's power of choice did not deprive the party injured of a remedy against him. The case is analogous to this, and the decision seems to be perfectly reasonable. We think in this case defendant was not relieved of his responsibility as employer by the fact that he was required by statute to employ a registered pharmacist.

2. Plaintiff claimed that his eye was injured by lime falling into it while he was at work at his trade as a plasterer, and that the application to it of a preparation secured from defendants on a prescription so aggravated the injury that its removal was necessary. When Dr. Amos, the specialist who performed the operation, was put on the stand by defendants as a witness, and asked to state what was said to him by plaintiff with reference to the cause of the injury to the eye, his testimony was excluded by the court on the ground that such communication to him was privileged, under the following provision of the Code: Sec. 4608. No practicing attorney, counselor, physician or surgeon * * * shall be allowed, in giving testimony, to disclose any confidential communication properly intrusted to him in his professional capacity, and necessary and proper to enable him to discharge the functions of his office according to the usual course of practice. * * * Such prohibition shall not apply to cases where the party in whose favor the same is made waives the rights conferred.” The contention of appellants is that plaintiff had waived his privilege with reference to communications made to Dr. Amos--First, by testifying with reference to the same matter on the same trial; second, by testifying as to the same matter at a former trial of this case; third, by calling Dr. Amos to testify as a witness with reference to the same matter on a former trial of this case. Evidence of the testimony of plaintiff and of Dr. Amos on the former trial was introduced to show such waiver. With reference to the testimony of plaintiff on this trial, it is urged by appellee that the matter about which Dr. Amos was asked to testify was gone into by plaintiff only in answer to questions on cross-examination, and it is contended that this did not constitute a waiver, while, as to the testimony of plaintiff and Dr. Amos on the former trial, it is contended that nothing done on one trial will amount to a waiver of the objection to evidence as to privileged communications when they are attempted to be proven on another trial of the same case. The section of the Code above set out constitutes a partial statutory declaration of a rule of evidence which was recognized at common law with reference to privileged communications to attorneys, but in this respect it is only a partial declaration; for, with reference to attorneys, as well...

To continue reading

Request your trial
17 cases
  • People v. Hamacher, Docket No. 81202
    • United States
    • Supreme Court of Michigan
    • March 30, 1989
    ...the better rule." 13 The Supreme Court of Iowa reached the same conclusion in Burgess v. Sims Drug Co., 114 Iowa [432 Mich. 174] 275, 86 N.W. 307 (1901), citing Briesenmeister and Grattan approvingly. The court said that it did not agree with the reasoning in McKinney. The Supreme Court of ......
  • Booren v. McWilliams
    • United States
    • United States State Supreme Court of North Dakota
    • January 15, 1914
    ...v. Cole, 67 Kan. 441, 73 Pac. 54;Madsen v. Utah Light & Ry. Co., 36 Utah, 528, 105 Pac. 799;Burgess v. Sims, 114 Iowa, 275, 86 N. W. 307, 54 L. R. A. 364, 89 Am. St. Rep. 359;In re Bruendl's Will, 102 Wis. 47, 78 N. W. 169; 10 Ency. of Evidence, 1064; 23 Am. & Eng. Ency. of Law, pages 86, 8......
  • Cerro Gordo Charity v. Fireman's Fund American Life Ins. Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 29, 1987
    ...Co., 104 N.Y. 352, 10 N.E. 544 (1887). But see Maryland Casualty Co. v. Maloney, 119 Ark. 434, 178 S.W. 387 (1915); Burgess v. Sims Drug Co., 114 Iowa 275, 86 N.W. 307 (1901). In view of the foregoing authority, we believe that the Supreme Court of Minnesota would hold that Richards had wai......
  • Missouri & North Arkansas Railroad Company v. Daniels
    • United States
    • Supreme Court of Arkansas
    • March 13, 1911
    ...... abrogated. Holloway v. Kansas City, 184 Mo. 19, 82 S.W. 89; Burgess" v. Sims Drug Co.,. 114 Iowa 275, 54 L. R. A. 364, 89 Am. St. Rep. 359, 86 N.W. 307. . .    \xC2"......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT