Fowler v. Randall
| Decision Date | 06 April 1903 |
| Citation | 73 S.W. 931,99 Mo.App. 407 |
| Parties | GEORGE R. A. FOWLER, Respondent, v. MARY L. RANDALL, Administratrix, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. John W. Henry, Judge.
REVERSED.
Judgment reversed.
Marley & Swearingen for appellant.
(1) It was not within the scope of the clerk's authority, as an employee of Randall, to undertake to prescribe doses of morphine. "A druggist is one who compounds or prepares drugs according to medical prescriptions given by physicians." Century Dictionary; Bishop on Non-Contract Law, sec. 716. (2) The failure to label the morphine "Poison" was not the proximate cause of death. The nature of the drug was known to deceased. Fisher v Golladay, 38 Mo.App. 540; Ashbrook v. Company, 18 Mo.App. 290; Wohlfart v. Beckert, 92 N.Y. 490; Hacket v. Pratt, 52 Ill.App. 347; Washington v Railroad, 17 W. Va.; Hognagle v. Railroad, 55 N.Y. 608; Carter v. Towne, 98 Mass. 567; Mill Co. v. Oil Co., 11 C. C. A. 257. (3) The girl secured the drug called for and there is no claim of receiving a poisonous drug for an innocent one. Getting the drug she called for, there is no liability. Brunswig v White, 70 Tex. 504; Jones v. George, 56 Tex. 149. (4) The sale was made to the girl, who did not disclose her agency, and Mary Fowler was not in privity with defendant. Davidson v. Nichols, 93 Mass. 514; Lampert v. Light Co., 14 Mo.App. 390; Davidson v. Nichols, 11 Allen 574; Winterbottom v. Wright, 10 Mees. & W. 109. (5) Failing to prescribe and put up in doses would be a breach of a contract, to make which the clerk had no authority, and we also deny that such a contract was made, but on that theory and assuming that the girl was the agent of Mary Fowler, then Mary Fowler was bound by the girl's observation and knowledge as much as though she personally bought the drug and saw that the clerk did not undertake to dose it out, and as though the clerk personally told her "he didn't know" how many grains there were; in fact, bound by everything he said to her, or did, or failed to do, in her presence. Henderson v. Botts, 56 Mo.App. 141; Bruen v. Fair Ass'n, 40 Mo.App. 425. (6) To take the morphine, under the circumstances shown by the evidence, was contributory negligence. She had the danger in mind. Fisher v. Golladay, 38 Mo.App. 542; Hacket v. Pratt, 52 Ill.App. 347; Meyer v. King, 72 Miss. 1; Wohlfart v. Beckert, 92 N.Y. 490. (7) Being bound to know all her agent knew, and being warned by her agent that she was taking too much of a drug she knew to be poison, Mary Fowler was guilty of such imprudence as should bar a recovery. Madison v. Railroad, 60 Mo.App. 605; O'Donnell v. Patton, 117 Mo. 20; Carroll v. Transit Co., 107 Mo. 662; Kearney v. Railway, 15 Mo.App. 576; Leduke v. Railroad, 4 Mo.App. 485.
John A. Eaton and W. R. Thurmond for respondent.
(1) The appellant has failed to point out wherein any of the instructions given on behalf of respondent are erroneous. (2) Taking the morphine under the circumstances was not negligence any more than for any sick person to take a dose of medicine put up by a druggist. The deceased, as shown by her statement, relied upon the knowledge of the druggist. She had a right to assume that the druggist had a better knowledge of the amount of morphine constituting a dose than the girl who said she thought it was too much. Besides, whether the deceased was guilty of contributory negligence was a question for the jury under the instructions of the court. Young v. Railroad, 72 Mo.App. 263; Lamb v. Railroad, 143 Mo. 171; Graney v. St. Louis, 141 Mo. 180.
--George S. Randall, the defendant's intestate, was a statutory druggist and pharmacist who owned and carried on a drugstore in which one Petrie, presumably also a statutory druggist and pharmacist, was clerk. On an occasion when Randall was absent from his store and Petrie was in charge of it, the latter made a sale of morphine to Vehrlee Ashcraft, a girl about fourteen years old. It appears that the girl who lived in the second story of the house occupied by plaintiff's wife was requested by the latter to go to a drugstore and purchase ten cents worth of morphine in doses. Accordingly the girl went to Randall's store and there told his clerk that she wanted "a dime's worth of morphine and to please dose it out," and "he went to the drawer and got two packages and handed them to me." As
The girl then took the two packages to the plaintiff's wife, who put the contents of one of them, which was in lumps, into a glass of water when the girl told her not to take all of them (the lumps) for she (the girl) thought it was too much, but the plaintiff's wife remarked in reply to this, that "she guessed the druggist knew what he was doing or ought to," and then drank the potion. The girl testified that she did not tell the plaintiff's wife that the morphine she brought her was not in doses. It appears from the subsequent admissions of the girl that she knew that morphine was a poisonous drug. It appears that the two packets purchased by the girl of Randall's clerk contained five grains each.
The plaintiff's wife died from taking one of these packets four days afterwards. This suit was brought by plaintiff against Randall on the ground that his wife's death was caused by the latter's negligence in sending her morphine in two packages in the quantities therein contained in violation of the instructions of the former's wife to put it up in doses, etc. There was a trial and judgment for the plaintiff and defendant appealed.
Our attention has not been called by the defendant to any error or infirmity in any of the instructions given for plaintiff, nor do we find any reason assigned why any of the defendant's refused instructions, except that in the nature of a demurrer to the evidence, should have been given. As we understand it, the defendant assails the judgment on the ground that the case was one for the court and not for the jury to decide.
While the trial was going on, the plaintiff offered to prove that the two packets of morphine that were sold to his wife by Randall were not labeled and marked as required by section 3044, Revised Statutes, but the court rejected such offer on the ground that the plaintiff's wife knew what the contents of the packets were and consequently the defendant's failure to comply with the statutory requirements was not the proximate cause of the result of which complaint is made. The question of proximate cause was in that way eliminated from the case; and is not presented to us for decision by the defendant's appeal.
And as to the question of contributory negligence, it is to be observed that the statute, sections 3040, 3044, Revised Statutes, impliedly forbids a registered pharmacist or druggist to sell poisonous medicines in quantities or doses except upon the prescriptions of a practitioner of medicine. The license of the former confers no such privilege, unless in cases falling within the exception. No one can be heard to claim ignorance of a public statute. Townsend v. Finley, 3 Mo. (205) 289. The plaintiff's wife either knew or ought to have known that a druggist or pharmacist was forbidden by the statute to prescribe poisonous medicines, such as morphine, in quantities or doses. When through the girl, who was her agent, she requested Randall to sell her ten cents worth of that poisonous drug "in doses" she knew that he was not privileged by law to do so. But if he had been authorized to sell it in doses without the prescription of a physician, he could not have complied with the request so made by plaintiff's wife. What would be a dose would most manifestly vary according to the condition of the health, habit, age, strength, etc., of the person intending to take it. As for example, a dose that would be proper for one accustomed to its use would be fatal to others, and so a dose that would be proper for a strong, healthy adult would be improper and perhaps fatal to one who is aged, weak, infirm or very young. Without a statement accompanying the request indicating the habits, age, strength, ailment for which it was to be used, and the like, no druggist, nor even the most reckless physician, would venture to comply with it. The request as to the "doses" was so vague and uncertain in its terms that it amounted to no request at all and was so unreasonable as to that, that it could not be heeded by any one. As to all that part of it beyond the "ten cents worth of...
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