Hargrave v. Vaughn

Decision Date27 November 1891
Citation18 S.W. 695
PartiesHARGRAVE v. VAUGHN <I>et al.</I>
CourtTexas Supreme Court

Appeal from district court, Hopkins county; B. F. LOONEY, Judge.

Action by M. B. Hargrave against Vaughn & Cumming and another. From a judgment for defendants, plaintiff appeals. Reversed.

J. H. Dinsmore and J. A. B. Putnam, for appellant. Leach & Templeton, King, Whittle & Son, and E. B. Perkins, for appellees.


This action was brought by Hargrave against Vaughn & Cumming, who were partners engaged in the business of apothecaries, and against J. R. Smith, who was their clerk, to recover damages resulting from the fact that the clerk, when a prescription was presented to him for medicine not poisonous or hurtful, negligently put up and delivered to him a drug, not called for by the prescription, which was poisonous and hurtful to his child, for whom the prescription was made by her physician, in ignorance of the fact that the medicine delivered by the prescription clerk was not that called for by the prescription. The petition alleged the giving of the poisonous drug to the child; that its sickness and death resulted from this; and claimed damages against all the defendants for loss of services of the child until her majority, she being at the time of her death less than two years old. He also sought to recover the costs of medicines, medical attention, and for services to the child rendered necessary by her illness. Defendants Vaughn & Cumming excepted to the petition on the ground of misjoinder of causes of action, and on the further ground that it showed no cause of action against them, it appearing therefrom that the injury resulted from the negligence of their agent, but they did not except to so much of the petition as claimed damages for the services of the child from the time intervening between the period of her death and time of her majority. They answered by a general denial, and, further, that their clerk was a skillful apothecary, and a careful man, and that they were not negligent in employing him and in keeping him in their service. Defendant Smith filed a general demurrer, and also a special exception, which questioned the sufficiency of the averments of the petition, in which negligence was pleaded. He also filed a general denial, and pleaded the statutes of limitation, as had done his co-defendants, but there were no grounds for these last pleas. The court overruled all the exceptions, and, when the case was called for trial, there were only 19 of the regular panel of jurors for the term present, who were not subject to challenge for cause, and the court permitted Vaughn & Cumming peremptorily to challenge six of them, and Smith thus to...

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32 cases
  • Waggoner v. Dodson
    • United States
    • Texas Court of Appeals
    • 10 May 1902
    ...v. Ruder, 25 N. E. 736. 9 L. R. A. 391. But be the rule as it may where the right to challenge is denied, the judgment in Hargrave v. Vaughn, 82 Tex. 347, 18 S. W. 695, was reversed because the defendants peremptorily challenged more jurors than they were entitled to, and, so far as we can ......
  • Turner v. Turner
    • United States
    • Texas Supreme Court
    • 25 November 1964
    ...of their own liability would not entitle each to six peremptory challenges as against plaintiff's cause of action. Hargrave v. Vaughn, 82 Tex. 347, 18 S.W. 695 (1891); Wolf v. Perryman, 82 Tex. 112, 17 S.W. 772 (1891); Retail Credit Co. v. Hyman, 316 S.W.2d 769(1-4), Tex.Civ.App.1958, writ ......
  • Waters-Pierce Oil Co. v. Burrows
    • United States
    • Arkansas Supreme Court
    • 11 November 1905
    ...74 S.W. 289; 27 Ky. 267; 93 Mass. 568; 24 N.W. 429; 76 N.C. 360; 10 Ohio Dec. 665; 44 Tenn. 227; 3 Ala. 88; 17 P. 746; 15 Ind. 274; 18 S.W. 695; 47 N.H. 466; 83 Ill. 405; Ohio Cir. Ct. Rep. 500. In any event, in the absence of showing that some jurors was retained whom the appellant desired......
  • Nueces County v. Gussett
    • United States
    • Texas Court of Appeals
    • 14 May 1919
    ...each be entitled to six peremptory challenges, as provided in article 5198, Revised Statutes. Jones v. Ford, 60 Tex. 127; Hargrave v. Vaughn, 82 Tex. 347, 18 S. W. 695; Wolf v. Perryman, 82 Tex. 112, 17 S. W. 772. As said by Chief Justice Stayton in the cited case of Hargrave v. "We do not ......
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