Hall v. Rankin

• Decision Date: 25 January 1893
• Citation: 54 N.W. 217,87 Iowa 261
• Parties: G. S. HALL, Appellee, v. J. B. RANKIN, Appellant
• Court: Iowa Supreme Court

54 N.W. 217

87 Iowa 261

G. S. HALL, Appellee, v. J. B. RANKIN, Appellant

Supreme Court of Iowa, Des Moines

January 25, 1893

Appeal from Wayne District Court.--HON. W. H. TEDFORD, Judge.

ACTION to recover damages of the defendant, a druggist, for selling and putting up carbolic acid instead of spirits of niter, by reason of which mistake the acid was given to the plaintiff's mare, causing her death. Verdict and judgment for the plaintiff. The defendant appeals.

Reversed.

E. L Hart, for appellant.

Steele & Livingston, for appellee.

OPINION

KINNE, J.

The plaintiff claims that in April, 1890, he purchased of the defendant, a registered pharmacist, two ounces of spirits of niter; that the defendant carelessly and negligently gave him, instead, two ounces of carbolic acid in a bottle labeled "Spirits of Niter;" that, relying upon the proficiency of the defendant as a pharmacist, and without negligence on his own part, he administered to his mare a part of the contents of the said bottle, from the effects of which she died. In an amendment to his petition, he avers that he took an empty bottle to defendant, which was then labeled "Spirits of Niter," and in which the defendant was to put niter, but negligently filled it with carbolic acid. The other allegations are the same as in the original petition. The defendant denied every allegation except that he was a registered pharmacist, and kept a drug store, and averred that the injury was caused by the plaintiff's own negligence.

I. Two physicians were called as experts, and asked as to the probable effect of "taking three-fourths of an ounce to an ounce and a half of carbolic acid, mixing it with a half pint of water, and giving it to a horse." The court permitted the question to be answered, notwithstanding the defendant's objection that the question assumed facts not shown by the evidence. The general rule, undoubtedly, is that there must be evidence tending at least to establish the facts upon which the opinion of the witness is asked. Hurst v. C., R. I. & P. Railway Co., 49 Iowa 76; State v. Cross, 68 Iowa 180, 26 N.W. 62; State v. Ginger, 80 Iowa 574, 46 N.W. 657; Meeker v. Meeker, 74 Iowa 352, 37 N.W. 773; In re Will of Norman, 72 Iowa 84, 33 N.W. 374; Ray v. Ray, 98 N.C. 566; 1 Rice, Ev., p. 350; 7 Am. and Eng. Encyclopedia of Law, p. 514. It is impossible to say, from the evidence, how much carbolic acid was given to the mare. It seems that most of the two ounces was put into a bottle containing hot water, and a part of the mixture given the animal. It is certain that the evidence tended to establish the facts set out in the question, and that was sufficient. True, there was no direct evidence that the acid was strong carbolic acid. But there was evidence as to the fact that the carbolic acid sold by the defendant was pure, and there was evidence tending to show that the acid given did kill the mare, and that the amount she must have taken would not ordinarily have produced death. Hence we think there was sufficient evidence to justify the question put to the witness. Again, this court has held that these hypothetical questions need not be framed with technical accuracy; that an error as to one or more facts is not prejudicial, as the opposing party may, on cross-examination, show the error, if any there be. Meeker v. Meeker, 74 Iowa 352, 37 N.W. 773; State v. Ginger, 80 Iowa 574, 46 N.W. 657. As to the extent of cross-examination in such cases, see Dilleber v. Home Life Ins. Co., 87 N.Y. 79.

II. The defendant, on cross-examination of the plaintiff's father, sought to contradict the plaintiff's testimony touching the label on the bottle which he claimed the defendant filled with carbolic acid. The witness, in his examination in chief, said nothing touching the matter sought to be inquired into on cross-examination. In any event, the defendant was not prejudiced by the court's ruling, as he might thereafter have called the witness on his own behalf, as to the matter about which he was seeking information.

III. The defendant offered to show by several witnesses that he was a careful and prudent man in handling medicines and poisons. The court rejected the testimony, and its...