Cullinan v. Tetrault

• Decision Date: 13 December 1923
• Citation: 122 A. 770
• Parties: CULLINAN v. TETRAULT.
• Court: Maine Supreme Court

122 A. 770

CULLINAN

v. TETRAULT.

Supreme Judicial Court of Maine.

Dec. 13, 1923.

Report from Superior Court, Penobscot County, at Law.

Action by Charles H. Cullinan, Administrator, against Arthur Tetrault. On report. Judgment for defendant.

Argued before CORNISH, C. J., and SPEAR, HANSON, DUNN, MORRILL, and DEASY, JJ.

Charles J: Hutchings and George E. Thompon, both of Bangor, for plaintiff.

Pattangall & Locke and Benedict F. Maher, both of Augusta, for defendant.

MORRILL, J. This is an action to recover for personal injuries sustained by plaintiff's intestate through the alleged negligent sale by defendant's servant to one Freeman of a poisonous preparation known as oil of checkerberry, in place of essence of checkerberry; the poison was taken by deceased, and resulted in his death.

The case is reported to the law court for determination of the legal rights of the parties, upon so much of the evidence as is legally admissible; the certificate of the presiding justice is in the usual form. All technical questions of pleading are deemed to be waived. Whitman v. Allen, 123 Me. 1,121 Atl. 160; Pillsbury v. Brown, 82 Me. 450, 455, 19 Atl. 858, 9 L. R. A. 94. The question is presented whether on all the evidence, giving it the weight and effect that a jury ought to give it, plaintiff is entitled to judgment. Tatro v. Railroad Co., 108 Me. 390, 81 Atl. 216.

The defendant, a druggist in Augusta, had occasion to be absent from his store on the 20th day of July, 1921, from about 6:05 in the evening for about one hour and a half; during that period the store was open and left by defendant in charge of a boy, Edmund Auger, a few months more than 17 years old; this boy lived in the block in which the store was located and worked in the Edwards cotton mill; he left school when in the seventh grade; for about 3 years he had worked at times for defendant, sweeping the store, doing errands, selling cigars, soda, and ice cream, on an average about two hours a week. He was manifestly incompetent to be left in charge of the store, and the action of the defendant in that respect was in violation of R. S. c. 20, § 10, and plainly negligent, and this is so, notwithstanding he had instructed Auger not to sell medicines and drugs.

On the 20th of July, 1921, the deceased and one Clifford E. Freeman, former acquaintances, met at a regimental reunion in Augusta; about 5 o'clock in the afternoon they left the muster field and went directly to Tetrault's drug store, where the boy, Auger, was in charge. The deceased remained on the sidewalk while Freeman entered the store. The testimony of Freeman and Auger does not differ very materially as to what took place.

Freeman says:

"I told him—I asked him if he had any essence of checkerberry.

"Q. Did you say anything else to him at that time?

"A. No.

"Q. Did he make any reply to that question that you put to him?

"A. He said, yes; he did.

"Q. Go on and state what you said to the clerk and what he said to you?

"A. So he says, 'We have got some checkerberry here to clean your teeth with.' I says, 'I don't want to clean my teeth.' He says, 'Why don't you drink jakey?' I says, 'I will if you have got it.' 'Well,' he says, 'we haven't got it;' so he produced a bottle, and he says, 'smell of it.' I smelled of it, and I says, 'It smells like the essence of checkerberry,' and he poured me out four ounces.

"Q. Did he deliver you the checkerberry in a four-ounce bottle?

"A. Yes, sir."

Auger testifies to substantially the same effect, except his statement is that Freeman asked for "five ounces of checkerberry."

The following morning Freeman related the circumstances to the county attorney as follows, according to the latter's testimony:

"He [Freeman] told me that they had decided that they wanted something to drink, and he had suggested to Cullinan that he thought something could be purchased at Tetrault's drug store and that they went up there. They went in, or he went in, and found a young man behind the counter whom he thought was 17 or 18 years of age, as I remember, and asked the fellow if he had any checkerberry, and the fellow answered him by saying he was not sure of it, but that they had something there that they sold to clean teeth with; pointed to the bottle and reached for it and handed it to Freeman and asked him to smell of it to see if that was what he wanted. Freeman smelled of the bottle, passed it back to him, and said that it was what he wanted. Four ounces were purchased."

Freeman then left the drug store, and accompanied by Cullinan purchased a bottle of ginger ale; they poured out part of the ginger ale, and replaced it with about one half of the contents of the bottle purchased at the drug store, and each drank about half of the mixture. They then went to a restaurant where Cullinan ate supper; while the latter was eating, Freeman partly filled the ginger ale bottle with water, and with Cullinan's knowledge poured into it the remainder of the contents of the other...