Corona Coal Co. v. Sexton

• Decision Date: 09 June 1925
• Docket Number: 6 Div. 528
• Parties: CORONA COAL CO. et al. v. SEXTON.
• Court: Alabama Court of Appeals

105 So. 716

21 Ala.App. 51

CORONA COAL CO. et al. v. SEXTON.

6 Div. 528

Court of Appeals of Alabama

June 9, 1925

Rehearing Denied June 30, 1925

Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.

Action for damages by J.H. Sexton against the Corona Coal Company and Weyman Hembree. From a judgment for plaintiff, defendants appeal. Affirmed.

Certiorari denied by Supreme Court in Ex parte Corona Coal Co. et al. 105 So. 718.

A.F Fite, of Jasper, for appellants.

Gray &amp Powell, of Jasper, for appellee.

RICE J.

Appellants were the defendants in the court below, and appellee was the plaintiff.

Plaintiff brought this action against the defendants for damages alleging, in substance, that Weyman Hembree, while employed by and acting within the scope of his said employment by the Corona Coal Company, a corporation, negligently, unskillfully, or inadvertently sold to the plaintiff "tablets containing strychnine, and other poisons, or tablets containing poisonous substance," as and for calomel tablets, for which plaintiff had called, and negligently or unskillfully gave to plaintiff directions for the taking of said tablets, as the proximate consequence of which he suffered the injuries and damage set out in his complaint. From the judgment in his favor, defendants appeal.

Defendants demurred to the complaint, which consisted of but a single count, on a number of grounds, and here insist that the trial court committed reversible error in separately overruling their demurrers.

"The public safety and security against the fatal consequences of negligence in keeping, handling, and disposing of dangerous drugs and medicines is a consideration to which no druggist can safely close his eyes. An imperative social duty requires of him such precautions as are liable to prevent death or serious injury to those who may, in the ordinary course of events, be exposed to the dangers incident to the traffic in which he is engaged, and it is therefore incumbent upon him to understand his business, to know the properties of his drugs, and to be able to distinguish them from each other. It is his duty so to qualify himself, or to employ those who are so qualified, to attend to the business of compounding and vending medicines and drugs, as that one drug may not be sold for another. *** A person engaged in the business of pharmacy holds himself out to the public as one having the peculiar learning and skill necessary to a safe and proper conducting of the business, while the general customer is not supposed to be skilled in the matter, and frequently does not know one drug from another, but relies on the druggist to furnish the article called for. It would be but idle mockery for the customer to make the (an) examination, *** and consequently the druggist must be held to warrant that he will deliver the drug called for and purchased by the customer. He must be certain that he does not sell to a purchaser or send to a patient a poison in place of a harmless drug, or even one innocent drug, calculated to produce a certain effect, in place of another sent for and designed to produce a different effect and it is well settled that he will be liable for any injury proximately resulting from his negligence." 9 R.C.L. pp. 702, 703.

"In accordance with the elementary principle that the master who undertakes to perform a service is liable for the negligence of his servant who, in the scope of his employment, is performing the service undertaken, it is well settled that when a person has been injured through the negligence of a druggist's clerk, the druggist is liable." 9 R.C.L. p. 708.

And, as said by the Supreme Court of Louisiana:

"In the discharge of their functions, druggists and apothecaries, persons dealing in drugs and medicines, should be required not only to be skillful, but also exceedingly cautious and prudent, in view of the terrific consequences which may attend, as they have not unfrequently in the past, the least inattention on their part." Walton et al. v. Booth, 34 La.Ann. 913, citing Cooley on Torts, pp. 75, 76, 648, 649.

And see Howes v. Rose, 13 Ind.App. 674, 42 N.E. 303, 55 Am.St.Rep. 251, where it is held that:

"Apothecaries, druggists, and all persons engaged in manufacturing, compounding, or vending drugs, poisons, or medicines, are required to be extraordinarily skillful and to use the highest degree of care known to practical men to prevent injury from the use of such articles and compounds."

"Inadvertence" is defined as the quality of being inadvertent, lack of heedfulness or attentiveness; inattention; negligence; an effect of inattention; a result of carelessness; an oversight, mistake or fault from negligence. 2 Words and Phrases, Second Series, p. 999; Greene v. Montana Brewing Co., 32 Mont. 102, 29 P. 693, 694. "In an action against a druggist, who it was charged furnished plaintiff poisonous drug in place of harmless remedy, the description of the drug as poisonous is sufficient." Tucker et al. v. Graves, 17 Ala.App. 602, 88 So. 40.

From a consideration of the principles quoted above, all of which we approve, and of others in line therewith, we are led to the conclusion that the complaint in this case, while in some respects awkwardly and...