Cody v. Toller Drug Co.
| Decision Date | 20 October 1942 |
| Docket Number | 46116. |
| Citation | 5 N.W.2d 824,232 Iowa 475 |
| Parties | CODY v. TOLLER DRUG CO. |
| Court | Iowa Supreme Court |
Stilwill, Brackney & Stilwill, of Sioux City for appellant.
Robert B. Pike, of Sioux City, for appellee.
On June 25 1939, plaintiff, then a railroad yardmaster, consulted Dr Sibley who gave him a written prescription for a tonic in capsule form to be taken internally four times a day. Plaintiff took the prescription to appellant's drugstore to be filled. He claims appellant negligently included in the capsules "atropine, a poisonous and injurious drug not called for in said prescription." Defendant maintains the prescription was correctly filled. Upon this appeal defendant-appellant's principal contention is that the evidence is insufficient to show the capsules contained atropine.
Plaintiff-appellee took a capsule after the noon meal and another in the evening on the 25th. His wife then noticed that his eyes were dilated. He also took a capsule the next morning and another at noon. When eating his noon meal on the 26th, plaintiff chocked on a piece of meat and had to leave the table. He couldn't swallow. He couldn't see. That afternoon he was unable to read the numbers on freight cars and could not distinguish people. He began to stagger, his throat was dry and he could hardly talk.
Becoming alarmed, appellee consulted Dr. Sibley in the afternoon of the 26th and told him he though something was wrong with the medicine. Dr. Sibley looked appellee over and his son, also a physician, examined him. Dr. Sibley phoned appellant's store and asked a clerk to read the prescription to him to make sure there had been no mistake in writing it. The doctor then told appellee not to take more of the capsules and gave him a prescription of bromides to settle his nerves. Dr. Sibley also saw appellee on the 27th when he called in Dr. Tripp, an eye and ear specialist, to observe appellee. Dr. Sibley testified that the symptoms he found all pointed to atropine and that the drugs which had been prescribed could not have caused appellee's condition; that he had used this prescription for twenty years and it had also been used by a former partner.
Dr. Edward Sibley, the son, testified that appellee "certainly seemed to have an acute case of poisoning from something and the only thing I could think of that could give such a picture clinically was atropine or something very closely related to it." He also said there was no probability that the prescribed drugs would produce the condition in which appellee was found.
Dr. Tripp who examined appellee's eyes on the 27th testified he was familiar with the effect of atropine on the eyes and that appellee's eyes looked as if they had atropine in them. He also said it was unreasonable that anything contained in Dr. Sibley's prescription would produce appellee's widely dilated pupils.
Dr. Krigsten had been appellee's physician at least part of the time for 7 or 8 years. After seeing Dr. Sibley, appellee consulted Dr. Krigsten on the 27th. He examined appellee and found him highly nervous, pupils dilated, complained of extreme dryness of throat, his voice hoarse and husky, and suffering from dizziness. Dr. Krigsten saw appellee every third to sixth day for the remainder of the summer. He testified that appellee was probably suffering from atropine poisoning and that his symptoms could probably not be caused by the medicine which Dr. Sibley prescribed.
Dr. Watkin testified in response to a long hypothetical question that the symptoms shown by appellee were probably not due to any of the prescribed drugs, specifically or in combination.
Both appellee and his wife testified that appellee had not previously suffered from similar symptoms.
Appellant's pharmacist, Johnson, who filled the prescription, testified they had on hand at the time atropine dispensing tablets which were used "more or less" in prescriptions; that druggists now use such tablets rather than old-fashioned powders in filling prescriptions. He also testified that arsenic and strychnine and atropine, if they had atropine, would be kept together in different bottles in the same compartment, although this was denied by Mr. Toller and Mr. Bogan. Arsenic acid and strychnine sulphate are two of the five drugs prescribed by Dr. Sibley as ingredients of the tablets. At the time in question Johnson was acting as relief pharmacist in the store because Bogan, chief pharmacist and manager, was on vacation. There is also testimony that the bottles and tablets of these three last named poisonous drugs were similar in size and shape.
Professor Coss, head of the Morningside College chemistry department, testified that he made a chemical analysis of some of the capsules; that Vitali's test was positive for atropine or the artopine group; that there was atropine in the capsules, "even more atropine than you would expect." This witness also performed a biological test by putting a solution from the capsules in one of his eyes. The solution dilated the pupil and indicated the capsules contained atropine or compounds of the atropine group. The professor also said the tests made by him were reliable and approved.
Dean Teeters of the Pharmacy College of Iowa University, a witness for appellant, denied much of Professor Coss's testimony. He testified that he performed Vitali's test (which he said was the best for atropine) upon the contents of three of the capsules and found no atropine. Dean Teeters also said it was impossible "to make a chemical examination that would be absolutely trustworthy" of the combination of prescribed drugs.
Upon cross examination of Professor Coss it was brought out that hyoscyamine and hyoscine, with atropine, are related drugs of "the atropine group" and that he could not be positive from his tests that the capsules contained atropine rather than hyoscyamine or hyoscine; that these three drugs of the atropine group have the same properties and would have the same effect although they are separate drugs. This testimony furnishes the principal basis for appellant's claim that appellee failed to prove the capsules contained atropine. That this argument is somewhat technical is disclosed by the fact that the chemical formula for hyoscyamine is identical with that for atropine, according to the U. S. pharmacopoeia of which we take judicial notice.
I. We think there was sufficient evidence that the capsules contained atropine. Appellee's medical witnesses testified that appellee, who had taken four of the capsules, showed the characteristic symptoms of atropine poisoning. The jury could have found that owing to the appearance and location in the prescription counter of the tablets and bottles containing arsenic and strychnine, which were prescribed, and those containing atropine, the latter may have been included. There was no evidence that appellant kept on hand any hyoscyamine or hyoscine, the other two drugs of the atropine group to which witness Coss referred, nor that the capsules in fact contained either drug, but only Coss' admission that either would produce similar results in Vitali's test. Dean Teeters, appellant's expert, did not claim that either of these other two drugs of the atropine group was present in the capsules. Coss' testimony as a whole was that he was strongly of the opinion there was atropine in the capsules, although he conceded he could not be positive from his chemical analysis alone that it might not have been one of the other two related drugs of the atropine group.
It was not necessary for appellee to prove conclusively the presence of atropine in the capsules, nor to exclude to a certainty every other suggested poison. The evidence was such as to make appellant's theory of atropine poisoning reasonably probable--not merely possible--and more probable than any other theory based on such evidence. This is sufficient. Bartholomew v. Butts, Iowa, 5 N.W.2d 7, 11, and authorities cited.
Appellant argues several other matters of evidence. For example, it is emphasized that Dean Teeters testified that Dr. Sibley's prescription was "irrational" and that phenacetine, one of the prescribed drugs, could have accounted for the dilated pupils in appellee's eyes. This testimony was vigorously denied, however. In fact the case, as we view it, presents principally disputed fact questions which were for the jury.
We are not to be understood from the foregoing as holding that proof that the capsules contained any one of the three related poisonous drugs of the atropine group would not be sufficient. We do not pass upon that question. Attention is called, however, to sections 11177 and 11181, Code, 1939, and as...
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