Galeener v. Derris
| Decision Date | 23 September 1929 |
| Docket Number | No. 4627.,4627. |
| Parties | GALEENER v. DERRIS. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Scott County; Frank Kelley, Judge.
Action by Lena Galeener against W. E. Derris. Judgment for plaintiff, and defendant appeals. Affirmed.
Henson & Woody, of Poplar Bluff, for appellant.
Ward & Reeves, of Caruthersville, for respondent.
Action for damages for injury resulting from an improper mixture of carbolic acid and alcohol, prepared for plaintiff by defendant, who is a pharmicist and druggist. Plaintiff recovered $1,000. Defendant appealed.
Plaintiff's evidence tended to show: That defendant operates a drug store and fills prescriptions. That plaintiff's husband went to defendant in February, 1927, and asked to buy some rubbing alcohol. That term is understood to mean alcohol with a small amount of carbolic acid in it, so that it can only be used by external application. That defendant prepared it, put it in a bottle, and marked the bottle with the words "Carbolic Acid and Alcohol." It was purchased at the time for use on one of the children, but was not used at that time, and was placed on a high shelf in the bathroom, where it remained until September, 1927, when plaintiff used some of it upon her feet and ankles. As a result of that use, her feet and ankles were burned and severely injured. That rubbing alcohol should contain only a small amount of carbolic acid. That 41 per cent. of carbolic would be too much, and when applied to the surface would destroy the tissues, cause same to slough off, and leave the surface raw. The contents of this bottle was analyzed and found to contain 41.2 per cent. carbolic acid.
The answer was a general denial, and defendant's evidence tended to contradict that of plaintiff as to the contents of the bottle, and also tended to show that 41 per cent. of carbolic acid in an alcohol rub would not be injurious. The jury found for plaintiff.
The points chiefly relied upon for a reversal consist of objections to plaintiff's instructions and failure of the court to grant a new trial because of newly discovered evidence. The instructions are long, and we do not deem it necessary to set them out in full, or discuss them at any length. We have carefully read all the evidence, and have closely scrutinized the instructions, and do not think they are open to the objections made against them.
The newly discovered evidence was presented in the affidavit of Maggie Harr, the most important part of which is, in substance, as follows: That during the fall of 1927, and for a long time prior thereto, she was employed by Mrs. J. H. Yount, who lived near plaintiff. That she was often in the home of plaintiff. That on the Sunday preceding the day that plaintiff was burned, Jerry Galeener, a son of plaintiff, who was about 9 years old, and Jack Yount, who was about 11 years old, took a bottle of carbolic acid from a shelf in the Galeener home, and poured the carbolic acid from the same into an 8 oz. bottle, which contained some other fluid. The bottle into which the carbolic acid was poured by said boys was the same bottle, the contents of which Mrs. Galeener said she used to apply to her feet, and the same bottle from which she sent the sample to St. Louis for analysis. On Monday, the next day thereafter, and one or two days before plaintiff used said application on her feet, she told plaintiff what the boys had done, and warned her that some one might be poisoned by using it. That after the carbolic acid had been poured into the larger bottle, said boys washed the carbolic acid bottle and had her fill it with corn syrup for them. That she did not tell the defendant, or any member of his family, or any other person representing him, of the above facts, because she did not want to be a witness in court.
Defendant and his counsel filed affidavit to show diligence on their part, and we assume that the trial court found that they were without fault.
The plaintiff filed a number of counter affidavits. The plaintiff made affidavit that the bottle of alcohol rub from which she obtained a liquid to use on her feet was constantly in her possession, and was kept by her on a high shelf in a secret place, and its whereabouts was not known to Jack Yount, or Jerry Galeener, and the bottle was full all the time, and was full when she used its contents to bathe her feet. She denied that Maggie Harr had ever told her that the boys had poured the carbolic acid in the bottle, or that she had any information that Maggie Harr claimed to have such knowledge, until she saw the affidavit she had filed in this case. She also stated that the general reputation of Maggie Harr for truth and veracity and morality was bad, and that she makes up and tells wild falsehoods as the truth.
Jack Yount, one of the boys whom Maggie Harr said poured carbolic acid into the bottle from which plaintiff secured the supposed rubbing alcohol with which to bathe her feet, testified that he and Jerry Galeener did not pour carbolic acid into the bottle, and he did not know there was such a bottle there, until after plaintiff's feet were burned; neither did they wash out any bottle and have Maggie Harr put molasses in it. He also stated that Maggie Harr had been a servant in their home for several years, and that she would tell big stories and wild things to such an extent that it was a joke among the members of the household. Jerry Galeener, the other boy alleged by Maggie Harr to have poured carbolic acid into the bottle, denied it also, and stated that he did not know there was such a bottle in the house until after...
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