Hendry v. Judge & Dolph Drug Co.

• Decision Date: 07 November 1922
• Docket Number: No. 17137.,17137.
• Court: Missouri Court of Appeals
• Parties: HENDRY v. JUDGE & DOLPH DRUG CO.

245 S.W. 358

211 Mo. App. 166

HENDRY v. JUDGE & DOLPH DRUG CO.

No. 17137.

St. Louis Court of Appeals. Missouri.

November 7, 1922.

Appeal from St. Louis Circuit Court, Robt. W. Hall, Judge.

Action by Maya L. Hendry against the Judge & Dolph Drug Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Jones, Hocker, Sullivan & Angert, of St. Louis, for appellant.

John B. Reno, of St. Louis, for respondent.

BRUERE, C.

This is an action to recover for injuries received by the plaintiff through the alleged negligence of the defendant's servant.

The petition in substance, charges that plaintiff applied to the defendant, at its place of business, for Rochelle salts, and that the defendant, by its agent and servant, negligently and carelessly furnished and delivered to her, instead thereof, "Roachsault," which is alleged to be a poisonous drug and insecticide; that she was unfamiliar with the character and appearance of Rochelle salts, and had never used the same, but had been advised that it was a mild purgative; that, believing the defendant had furnished her with "Rochelle salts," as called for by her and represented by plaintiff, and relying upon said representation, and believing the contents of the package delivered to her to be "Rochelle salts," she swallowed two tablespoonfuls of the mixture, contained in said package with the intention and purpose of taking a mild purgative, and that as a result of using the contents of said package she suffered great pain and permanent injury. The petition also charges that said sale was made without affixing to the package containing said "Roachsauit" the word "Poison."

The answer is a general denial, coupled with a plea, alleging that whatever injuries plaintiff may have sustained were caused and contributed to by her own negligence, in carelessly taking a preparation which was obviously not intended for human consumption, which fact could have been ascertained by the exercise of ordinary care.

A trial by jury resulted in a verdict and judgment in favor of the plaintiff, and defendant appeals. Among the errors complained of we find: (1) Insufficiency of the evidence to sustain the verdict, in that the evidence shows that the plaintiff was guilty of contributory negligence as a matter of law; (2) giving, by the court, of plaintiff's instruction No. 1.

The facts proved were briefly these: Plaintiff went to the store of defendant, who is a druggist, and called for Rochelle salts. She was waited upon by a clerk of defendant, who delivered to her a can of "Roachsault." Supposing that the can delivered to her contained the salts called for, plaintiff upon her return home took two tablespoonfuls of the contents thereof in a glassful of water, with the intention of taking same as a mild purgative, and very soon thereafter, and as a result of taking said substance, felt violent pains in the region of her abdomen, became afflicted with vomiting, and suffered from an acute gastritis; thereafter plaintiff examined the can, and found she had taken "Roachsault." The evidence further disclosed that the can was wrapped in a piece of plain wrapping paper of the defendant, and that on neither the wrapper nor the can did the word "Poison" appear, to advise the plaintiff of the poisonous and dangerous character of said drug.

The can was introduced in evidence, and it is there as an exhibit. It is about 3½ inches in height and about 1% inches in diameter. Across three-quarters of its face is printed the word "Roachsault," and on the other quarter appears a small picture of a roach, and also printed matter, in small type, giving directions as to how to use the sault. On the top thereof appear the words, "To use, push down points." It further appears from the evidence that plaintiff opened the can in accordance with the direction thereon given, but, before taking of the contents thereof, did not read or examine the label thereon.

The evidence further tends to prove that plaintiff went to defendant's drug store to purchase Rochelle salts on the advice of a friend, who recommended it to her as a mild purgative and that plaintiff had never purchased or taken any of said salts and was wholly unfamiliar with its character and appearance. A chemical analysis of the substance contained in said can was made, which disclosed that it consisted of 55 per cent. sodium fluoride, 5 per cent. mixture, and 40 per cent. siliceous matter. There was a contrariety of opinion expressed by the physicians examined as to the poisonous character oft "Roachsault." The evidence on the part of the plaintiff tended to show that the said mixture was usually denominated a poison, and that adduced by the defendant tended to show the contrary.

In determining the sufficiency of the evidence, this court must view the evidence in the light most favorable to plaintiff, and must admit as true, not only the facts proved, but every inference that may reasonably be drawn from the evidence. Thus viewing the evidence, the question whether the plaintiff was guilty of contributory negligence was for the jury to decide. This action is bottomed on negligence, or the nonperformance of a legal duty to the plaintiff. The act complained of—the act which led to the injury—was negligently selling and delivering to the plaintiff a poison, instead of the harmless salts called for.

The defendant, in selling the drug in question, impliedly warranted that 1; was the article called for and purchased by the...