Fleet & Semple v. Hollenkemp

• Court: Kentucky Court of Appeals
• Writing for the Court: Hise
• Citation: Fleet & Semple v. Hollenkemp, 52 Ky. 219, 56 Am.Rep. 563 (Ky. Ct. App. 1852)
• Decision Date: 08 July 1852
• Parties: Fleet & Semple <I>vs.</I> Hollenkemp.

52 Ky. 219

Fleet & Semple vs. Hollenkemp.

Court of Appeals of Kentucky.

July 8, 1852.

APPEAL FROM KENTON CIRCUIT.

Judge HISE delivered the opinion of the court, which was suspended by petition for re-hearing until the 8th of July, when the petition was overruled.

John Hollenkemp sued Wm. T. Fleet and Samuel P. Semple, partners in the business of vending drugs by retail, in an action upon the case, for having, through negligence, permitted a portion of the poisonous drug called cantharides, to be intermingled with some snake root and Peruvian bark which he had purchased at their drug store, and which he, being then indisposed, by the advice of his physician had taken as medicine for his restoration, not knowing that the poison had been mixed with the bark and snake root, and that in consequence he had been made very sick, endured great suffering, pain, and agony, and that his health had been thereby permanently injured. The defendants appeared, and pleaded not guilty. There was a trial, verdict, and judgment against the defendants for $1,141 75 damages, and costs of suit.

The defendants moved the court to set aside the verdict and judgment, and to grant them a new trial, upon various grounds, which may all be summed up and stated as follows:

1. Because of the discovery of important evidence made during the progress of the trial, for the first time, and which they allege they had neither the opportunity or power to procure and offer to the jury.

2. Because the damages found by the jury were excessive, and unwarranted by the facts of the case and the proof in the cause.

3. Because the court erred in giving the instructions asked by the plaintiff's counsel, and in refusing those asked by the counsel of the defendants.

The court refused to grant a new trial, and defendants' motion to that effect was overruled. The defendants filed their bills of exceptions to this and other decisions of the court given pending the trial. The evidence was reduced to writing and certified, and the defendants have appealed to this court.

The evidence collectively presents, in substance, the following state of fact: that the plaintiff having been sick for some time, had improved and was convalescent. A tonic preparation was recommended by the attending physician, who made out a written prescription for the plaintiff, as follows: that he should procure two ounces of snake root and two ounces of Peruvian bark, in the form of powder, to be mixed and divided into four portions; to be made into a tea, by the application of three pints of water to each portion of snake root and bark; the patient to take half of a tea cup full of the decoction twice each day. This prescription was sent by the plaintiff to the defendants' drug store to be filled. There the two ounces of snake root and two ounces of Peruvian bark were, by the clerk, in the presence of one of the defendants, put into a mill to be ground into powder, and passed through the mill, and thus pulverized. It was then put up in separate papers, as directed by the prescription, and delivered to the plaintiff's messenger, who carried them to the plaintiff. A tea was made of one of the potions. The patient drank a half tea cup full of the preparation, and, shortly afterwards, the effect produced by the dose was so unexpected and extraordinary that the same physician was sent for who had drawn up the prescription, who, upon his arrival, found his patient laboring under all those violent symptoms which, according to all the evidence on the subject, are produced by cantharides when taken in sufficient quantity into the stomach. The physician, his suspicions being aroused, procured and examined the three remaining potions of the medicine, as compounded at defendants' drug store, and easily detected the presence of Spanish flies in the mixture. They were taken to the drug store to inquire into the matter. There the potions were recognized as having been compounded and put up in that store, by the clerk, and the fact that some Spanish flies had been, in some way, mixed with the bark and snake root, was detected and admitted.

It is unnecessary to state in detail the symptoms and effects exhibited by the patient after taking one dose of the tea as directed, the proof is conclusive and satisfactory that they were most violent, dangerous, and excruciating, and precisely such as would be produced by a sufficient dose of cantharides. It is true that there was contrariety of opinion expressed by the physicians examined, as to the durability and permanency of the injurious effects produced by this drug. The attending physician gave it as his opinion that the symptoms exhibited were produced by the cantharides, and that the plaintiff's health had been permanently injured by the dose which he had taken. Several other doctors examined, gave it as their opinion that generally the effects of this drug, unless taken in sufficient quantity to produce death, would be only temporary and evanescent. That they had never known an instance where the health of a person surviving the immediate effects produced by cantharides, had been permanently injured; though they did not deny but that such might be the consequence in some cases, where the peculiar condition of the patient's system was such as that the poisonous quality of the drug might be more pernicious and virulent in its effects, and that in special cases it might cause permanent ill health.

There was evidence introduced by the defendants, which was intended to screen and exempt them and their agent or clerk from the charge or imputation of having been guilty of inexcusable negligence in compounding and putting up the medicines — to-wit: the snake root and Peruvian bark — as required by the prescription furnished by the plaintiff's medical adviser.

The physicians examined as witnesses, all concur in proving that the violent and injurious effects produced upon the plaintiff by the dose which had been taken by him could not have resulted, if it had contained nothing but the snake root and Peruvian bark; that when taken in the quantities as administered to plaintiff, they are harmless and innocent drugs, and the fact, as deduced from all the testimony in the cause, is conclusively established, that although the plaintiff sent them a prescription for snake root and Peruvian bark only, the defendants being druggists, sent him in return, say by mistake, a compound made up of the drugs required, intermixed with a most pernicious and deleterious poison, which, in fact, bears no kind of resemblance to the medicines named in the prescription, and the mingling of which with the innocent medicines sent for by plaintiff, was caused by improperly pulverizing the root and the bark, by grinding them in the same mill in which Spanish flies had been previously ground.

To sustain the ground taken for a new trial, that new evidence had been discovered pending the trial, which circumstances rendered unavailable, the defendants rely upon the affidavits of Reuben Broaddus and T. N. Wise. Broaddus states in substance, that he knew the plaintiff as far back as 1842, and that he then and frequently afterwards complained of weakness and feebleness, and that his health was so frail that sometimes he was not able to perform hard labor; that what he knew upon the subject was not disclosed to the defendants until their attorney had commenced his argument to the jury.

Assume these statements to be true, they do not sustain the motion for a new trial; because,

1. If the testimony of Broaddus would have been important in aid of the defense, upon motion to the court, based upon the facts stated, the argument of the case would have been suspended, and Broaddus might have been sworn as a witness, and would have been allowed to give evidence to the jury before their retirement. But although the witness was present and defendants knew what he would prove, before the case had been given to the jury, they did not offer to introduce him. (Higden v. Higden, 2 A. K. Marshall, 43.)

2. Because the defendants, from the facts in the record, are convicted of negligence with respect to the preparation of their defense. It appears that at the term preceding that during which the trial took place, the cause had been fully investigated before a jury, and the evidence heard, but the jury failing to agree, there was a mis-trial. The same evidence for plaintiff was no doubt then given to the jury, upon which he relied in the final trial; and the defendants had ample time, by reasonable inquiry, to have procured witnesses to establish the fact, of the importance of which they could not have been ignorant, if it could have been done — to-wit: that the ill health of the plaintiff had been of long standing, and not of recent origin. As bearing upon the question of the amount of damages to be given by the jury, the plaintiff, on the final trial, and as is supposed at the previous mis-trial, introduced proof to the effect that...