Duensing v. Huscher, 53097

• Decision Date: 08 July 1968
• Docket Number: No. 53097,No. 2,53097,2
• Citation: 431 S.W.2d 169
• Parties: Jeffrey Alan DUENSING, Pro Ami, Respondent, v. Edward A. HUSCHER and Huscher Drug Store, Inc., Appellants
• Court: Missouri Supreme Court

Page 169

431 S.W.2d 169

Jeffrey Alan DUENSING, Pro Ami, Respondent, v. Edward A. HUSCHER and Huscher Drug Store, Inc., Appellants.

No. 53097.

Supreme Court of Missouri, Division No. 2.

July 8, 1968.

Motion for Rehearing or to Transfer to Court En Banc Denied

Sept. 9, 1968.

William T. Bellamy, Jr. and Bellamy & Bellamy, Marshall, and William Aull, III, Aull, Hader & Sherman, Lexington, for respondent.

Newton R. Bradley and Bradley, Skelton & Schelp, Lexington, W. K. Gibson and Martin, Gibson & Gardner, Sedalia, for appellants.

HENRY J. WESTHUES, Special Commissioner.

Jeffrey Alan Duensing, a minor, by his father, Robert Duensing, as next friend, filed suit in the Circuit Court of Lafayette County, Missouri, against Edward A. Huscher and the Huscher Drug Store, Inc., for damages for bodily injuries alleged to have been caused by delivering to plaintiff's parents suppositories containing a barbiturate drug when, in fact, aspirin suppositories had been prescribed.

The petition was in two counts. In the first count, plaintiff sought $25,000 actual damages. In the second, plaintiff asked for punitive damages in the sum of $100,000.

Plaintiff claimed that defendant Edward Huscher was an employee of the defendant Huscher corporation but was not a registered pharmacist, that aspirin suppositories had been prescribed by Dr. Robert Best, that Edward Huscher filled the prescription and, in doing so, violated Section 338.260, RSMo 1959, V.A.M.S.

Defendants claim that Edward Huscher did not violate any law in delivering aspirin suppositories and that he 'delivered or intended to deliver aspirin 2-grain suppositories for plaintiff which item is a pre-packaged, proprietary drug or medicine, as authorized and provided by Section 338.010 as the Revised Statutes of Missouri and that at all tiems said defendants acted in good faith and in the honest belief that his action was lawful and in compliance with said statute, and if said package did contain seconal suppositories as alleged by plaintiff, it was not due to the fault or negligence of the defendants, and by reason thereof plaintiff is not entitled to recover herein * * *.'

It was agreed that second suppositories contain a barbiturate drug.

A trial was had before court and jury resulting in a verdict and judgment for plaintiff against both defendants on Count One in the sum of $22,000, and on Count Two in the sum of $10,000 against each defendant, or a total of $42,000.

Motion for a new trial was overruled and defendants appealed from the judgment against them.

Defendants have briefed eleven points. We find a number of duplications and, therefore, we shall consider the points without designating them by number.

Most of the points briefed concern procedural matters such as voir dire examination of the jurors, admission of evidence, instructions, and arguments of counsel. Points with reference to the merits present questions of whether plaintiff sustained substantial injuries, whether, under the law and the evidence, punitive damages were authorized, and whether the verdicts, for both actual and punitive damages, are grossly excessive.

The evidence supports the following statement of what occurred.

On the morning of July 27, 1965, plaintiff, a child 2 1/2 years of age, became ill with a cold, sore throat, and fever. His mother gave him some aspirin but the child could not retain it. About five o'clock that afternoon the child was taken to Dr. Robert Best at Higginsville, who administered a penicillin shot. Plaintiff was taken home. A short time thereafter plaintiff became pale and stiff, acting as if he wanted to vomit. His parents became alarmed and took him back to Doctor Best, who advised that the child had had a convulsion due to high fever and recommended that the child be given aspirin suppositories rectally. Doctor Best called the defendant drugstore and defendant Edward Huscher answered the telephone. The doctor told Huscher to prepare aspirin suppositories and to place directions as to their use on the package, and that the Duensings would call for them. Edward Huscher obtained a container, supposedly containing aspirin suppositories, removed the label, and prepared a label with the Huscher Drug Store name, a prescription number, and the doctor's directive, and placed the label on the container. This container, which was supposed to contain twelve 2-grain aspirin suppositories, was delivered to plaintiff's mother. The mother, as advised by Doctor Best, immediately inserted rectally one of the suppositories. During the night, four or five more suppositories were inserted as directed. Plaintiff apparently did not improve and, at about 4:00 a.m., he appeared to be unconscious and Doctor Best was called. Upon his advice, the child was taken to Mercy Hospital at Kansas City where he remained from about 6:30 a.m., July 28, until noon, July 31, 1965, when he was taken home. At Mercy Hospital, the examination of plaintiff and various tests disclosed that he was suffering with barbiturate intoxication and that he had received about ten times the amount for a child of his age. A number of the suppositories were examined and found to be barbiturate suppositories. A test by the Industrial Testing Laboratory showed a like result.

We shall state additional facts where necessary to dispose of the points briefed.

During the voir dire examination plaintiff's counsel informed the prospective jurors that the plaintiff was asking punitive damages. Counsel explained the purpose and nature of such damages and then asked the following question: 'In this regard, I'm going to ask the jury whether or not--if the Judge instructs you on punitive damages in this case, whether or not you have any reservations in your mind against applying the law? In other words, do you have anything in your conscience that opposes that proposition of law that will prevent you from carrying out and giving a verdict based upon the law as given to you by Judge Cook?'

Defendants' objection to this question was overruled. Defendants claim that such question violated Civil Rule 70.01(a), V.A.M.R., requiring all instructions to be in writing and, further, that the inquiry was an attempt by plaintiff to get the jury to commit itself to award punitive damages. Among the cases cited by defendants we find State v. Smith, Mo., 422 S.W.2d 50. The question of law before us was considered by the court in that opinion at 422 S.W.2d 67, 68, syllabi 29--31. This court at page 68 quoted with approval the following, taken from State v. Mosier, Mo., 102 S.W.2d 620, l.c. 624: "The correct procedure is for counsel to ask the members of the panel whether, if the court later instructs them in a specified manner, they have any opinion or conscientious scruples such as would prevent them from returning a verdict accordingly." The same question was considered at length by the St. Louis Court of Appeals in Littell v. Bi-State Transit Development Agency, Mo.App., 423 S.W.2d 34, l.c. 36, 37, 38. The procedure outlined in the above cases was substantially followed in the case before us. We rule that the trial court did not err in permitting the inquiry.

Evidence of two doctors was introduced by plaintiff that barbiturates are habitforming drugs and used on occasion by persons to commit suicide. Defendants say this evidence was immaterial, that plaintiff did not claim to have formed a habit of taking the drug or to have attempted to commit suicide.

We are of the opinion that the evidence was admissible to prove the nature and harmful effect of the drug.

Plaintiff, to recover damages, was required to produce evidence that the drug was in fact harmful and in fact did produce injury. The questioned evidence tended to support the claims of plaintiff. Defendants claim that the evidence caused bias and prejudice against them. That fact, if it be a fact, did not render the evidence inadmissible. 31A C.J.S. Evidence § 186, p. 498; Ingram v. Prairie Block Coal Co., 319 Mo. 644, 5 S.W.2d 413, l.c. 418(9); State v. King, Mo., 334 S.W.2d 34, l.c. 38, 39(5, 6).

Plaintiff claimed that Edward A. Huscher violated Section 338.170. Defendants claimed that Section 338.170 was not violated because Edward, in filling the prescription, did so under the provisions of Section 338.010 under the direct supervision of his father who was a licensed pharmacist. Further, it is claimed that Edward did not at any time claim to be a registered pharmacist and that at no time did the drugstore use an exhibit or sign indicating that he was a registered pharmacist in violation of Section 338.170.

Plaintiff, to support his charge, offered evidence that there were signs on display in the drugstore that a pharmacist was on duty when no registered pharmacist was in fact present and, further, that the signs on display were placed with the name of Edward Huscher so as to indicate that he was a registered pharmacist. Plaintiff introduced evidence that Edward Huscher filled the prescription for the aspirin suppositories when his father was not present, and evidence that Edward filled prescriptions on other occasions when no registered pharmacist was in the drugstore.

Defendants introduced evidence contradicting the above evidence of plaintiff.

Plaintiff, to sustain the charge of a violation of the law, was required to prove that defendant Edward Huscher filled the prescription ordered by Doctor Best and did so without the supervision of a registered or licensed pharmacist. State v. Holbert, Mo.App., 399 S.W.2d 142.

Defendants contend that the evidence that Edward Huscher filled prescriptions on occasions other than the one in question was not admissible and that the court erred in his respect. Such evidence, in our opinion, was properly admitted on that disputed vital issue. Charles F. Curry & Co. v. Hedrick, Mo., 378 S.W.2d 522, l.c. 536(18, 19). Such evidence was in direct contradiction of defendants as to the course of conduct with reference to having a...