Campbell v. Brown

• Decision Date: 07 October 1911
• Docket Number: 17,217
• Parties: LILLY CAMPBELL, Appellee, v. CHASE W. BROWN, Appellant
• Court: Kansas Supreme Court

117 P. 1010

85 Kan. 527

LILLY CAMPBELL, Appellee, v. CHASE W. BROWN, Appellant

No. 17,217

Supreme Court of Kansas

October 7, 1911

Decided July, 1911.

Appeal from Neosho district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. EVIDENCE--Chemical Analysis--Statement to Chemist--Hearsay and Incompetent. In an action by a widow to recover damages for the death of her husband caused by the alleged negligent sale by a druggist to him of wood alcohol, which he mistook for grain alcohol and drank causing his death, the stomach of the deceased and a sample of the liquid were sent for examination and analysis to witnesses who were permitted to testify as to statements made by the persons delivering such stomach and sample as to whence they came. Held, hearsay and incompetent. But as other and competent evidence sufficiently showed their identity and unchanged condition, such hearsay was not materially prejudicial.

2. EVIDENCE--Jury are Judges of Credibility of Witnesses. The jury found that the deceased purchased or had no other liquor on the occasion in question, which finding was contrary to the undisputed evidence of the only witness who testified on this point. Held, that the court did not err in refusing to set aside such finding, for the reason that the jury were the judges of the credibility of such witness and were not required to believe him.

3. NEGLIGENCE--Druggist Selling Unlabeled Poisons. It was immaterial whether or not the deceased applied for alcohol for use as a medicine intending to use it as a beverage, as this, if true, would be no justification or defense for selling wood alcohol unlabeled.

4. NEGLIGENCE--The pharmacy act (Gen. Stat. 1909, §§ 8095-8112) does not by legislative construction or repeal of section 260 of the crimes act (Gen. Stat. 1909, § 2763) render it lawful for one, whether a registered pharmacist or not, to sell wood alcohol without labeling it as a poison.

5. VERDICT--Not a "Quotient" Verdict. When instead of discussing the merits of the case each of the jurors marks down the amount he thinks the plaintiff should recover, and the amounts are added and the sum divided by twelve, and an amount materially less than the quotient is thereafter unanimously agreed upon and returned, held, that while such procedure is not to be commended, the verdict finally agreed upon is not shown to be a quotient verdict requiring its setting aside.

John J. Jones, and James W. Reid, for the appellant.

F. J. Oyler, H. P. Farrelly, and T. R. Evans, for the appellee.

OPINION

WEST, J.:

Lilly Campbell, widow of David L. Campbell, sued Chase W. Brown to recover damages for the death of her husband, alleged to have been caused by the negligent sale to him of wood alcohol which it is alleged he mistook and drank for grain alcohol. She recovered a judgment and the defendant appeals, assigning as errors the admission of testimony, refusal to submit certain questions to the jury, the giving and refusing of instructions, and the denial of a new trial.

Certain witnesses were permitted to state that when receiving the stomach and liquid for examination they were informed by the persons delivering the same as to whence they had been taken. This was pure hearsay and entirely incompetent (Campbell v. Brown, 81 Kan. 480, 106 P. 37), but as other and competent evidence sufficiently established that the stomach was that of the deceased, and had remained in the condition it was in when removed, the hearsay in reference thereto was not materially prejudicial. As to the liquid, the same should be said but for one thing which requires notice. The testimony showed that the bottle contained but a short quart at first, and Mrs. Campbell testified that her husband brought it home Friday evening, and next morning he took out enough to make a drink diluted with water, then poured out some in a bottle and diluted it with water to take with him; that the bottle into which this was poured was nearly half full and she thought it was a pint bottle; that that evening he took another drink; that on the first morning drinks were taken out for two others; that Sunday morning he took another drink. She also testified that Saturday evening he used over one half of the bottle for mixing a liniment for use on a horse. This was evidently before some of the drinks had been taken from the bottle. The county attorney and a physician respectively testified that shortly after the death of Campbell the bottle was "half or little more, possibly two-thirds, full," "something like two-thirds full."

It is argued that if all this testimony be substantially correct the bottle must have been tampered with after its numerous depletions and before the sample was taken for analysis, and that therefore such sample was improperly used as evidence. The testimony is none too satisfactory, but as it consists merely of estimates, no one pretending to have measured the variously considered contents, taking it together with all the other evidence and circumstances we find no just cause for suspicion that the contents of the bottle had been surreptitiously increased but must conclude that the jury were warranted in believing the sample analyzed to be genuine. In other words, the various statements and estimates concerning the contents of the bottle were proper for consideration, and, realizing the inevitable inaccuracy of such mere estimates, it can not be said that the conclusion reached by the jury was contrary to the evidence or unsupported thereby.

The amended petition alleged that Campbell made application in writing for "one quart of alcohol, commonly called grain alcohol to be used by the plaintiff as a domestic medicine and defendant then and there undertook and pretended to fill the order as aforesaid"; also, "plaintiff alleges that said application will show that this alcohol was purchased for a medicine." The defendant introduced a copy of the application, which calls for a quart of alcohol and oil needed by a horse as medicine for the disease of "sprain tendon." Considerable testimony was received as to whether this application was in its original form, one witness stating that he had examined it some time after it was made and that he did not remember that there was then written thereon "& oils," "horse," or "tendon." Another witness who examined it three days after it was made testified that it was then in the same condition as when offered in evidence. The cross-examination of the defendant and the photograph copy found in the counter abstract indicate that certain words are written over certain others or over places where others had been written. At any rate the question whether the paper in evidence was a true copy of the application actually made was sharply contested. Several questions were requested to be submitted to the jury touching this application and its truthfulness and good faith, upon the theory that the plaintiff could not recover if the deceased fraudulently applied for alcohol to be used for medicine, intending to use it as a beverage. This being the ground and purpose of the questions, there was no error in such refusal, for even had such intention existed this would not preclude a recovery or justify a sale of poison without label. (Campbell v. Brown, 81 Kan. 480, 485, 106 P. 37.) One of these questions was whether the copy introduced by the defendant was a true copy of the application made, and had this been requested for the purpose of clearing the defendant from any suspicion of having. tampered with the paper it should have been submitted; but offered, as it appears to have been, for its bearing upon the good faith of the deceased it was properly refused.

The seventh question submitted was answered by the jury to the effect that the color of the alcohol kept by the defendant on the date in question was white or clear, which answer is said to be contrary to the evidence. However, an examination of the testimony given by various witnesses on this point shows sufficient conflict to preclude us from interfering with...