Howes v. Rose
| Decision Date | 26 November 1895 |
| Docket Number | 1,677 |
| Citation | 42 N.E. 303,13 Ind.App. 674 |
| Parties | HOWES ET AL. v. ROSE |
| Court | Indiana Appellate Court |
From the Floyd Circuit Court.
Judgment reversed, with instructions to grant appellee a new trial, if requested within ninety days.
C. L Jewett, H. E. Jewett, G. H. Voigt and E. B. Stotsenburg, for appellants.
J. V Kelso, C. D. Kelso and J. K. Marsh, for appellee.
The appellee, plaintiff below, in her complaint alleged that she was ill and in need of medicine, and applied to the appellants, defendants below, at their place of business, for Rochelle salts, a safe and harmless medicine; that instead of furnishing her said salts, the defendants carelessly and negligently furnished, sold and delivered to her, instead thereof, a quantity of Tartaric acid, a noxious, baneful and poisonous drug, which she administered to herself, believing the same to be Rochelle salts, and suffered pain and injury in consequence thereof.
The special verdict found substantially these facts:
On the 8th day of March, 1894, the plaintiff and defendants were residents of the city of Jeffersonville. The defendants were retail druggists, engaged in conducting the business of a retail and prescription drug store in said city. On the 6th day of March, 1894, the defendants ordered of the firm of Renz & Henry, wholesale druggists and chemists, engaged in business at the city of Louisville, Kentucky, a quantity of a drug known as Rochelle salts. The said Renz & Henry were reputable and established wholesale druggists and chemists, and had been engaged in that business for many years. Upon the receipt of defendants' order, Renz & Henry sent to the defendants a package of white powder, resembling Rochelle salts in appearance, and labelled "Rochelle Salts." The package was received at the defendants' place of business by their clerk, one William Schwamnger. The package was billed on a statement accompanying it as Rochelle salts. The clerk, Schwamnger, was a competent and skilled pharmacist. He opened the package and examined the contents, and, believing the same to be Rochelle salts, placed it in a jar in which Rochelle salts was kept for sale in said store, which jar was labelled Rochelle salts. Rochelle salts is a white powder, and from the appearance of said drug as received, the defendants and their clerk, Schwamnger, could not tell and did not know but that the same was Rochelle salts. On the 8th day of March, 1894 the plaintiff, desiring to administer to herself a dose of Rochelle salts, applied to the defendants at their place of business for ten cents worth of said salts. The defendants' drug clerk, one Henry Voigt, took from the jar labelled Rochelle salts, a portion of the drug purchased of Renz & Henry, and sold and delivered a portion thereof to the plaintiff. At the time the drug was so sold to the plaintiff, the defendants and their clerks believed the same to be Rochelle salts. The plaintiff, believing the drug to be Rochelle salts, dissolved two tablespoonfuls in water and drank the same. The drug so administered by plaintiff was not Rochelle salts, but a drug known as Tartaric acid. Tartaric acid is a white powder resembling in appearance Rochelle salts, and when taken in as large quantities as two tablespoonfuls dissolved in water causes an irritation of the throat and stomach, and a burning sensation and cramps of the stomach. The effect of such drug on the plaintiff was to cause an irritation of the throat and stomach, and to cause her violent pains in the stomach and abdomen for some time after taking the same, and has caused her health to decline. The plaintiff's damages were assessed in the sum of $ 200.00.
The appellee moved for judgment in her favor on the finding and the appellants moved for judgment in their favor. The appellee's motion was sustained and appellants' overruled. These rulings are the errors assigned in this court.
In view of the dire consequences that may result from the least inattention or want of care or skill, druggists, apothecaries and all persons engaged in manufacturing, compounding or vending drugs and medicines should not only be required to be skillful, but should also be exceedingly cautious and prudent. All persons who deal with deadly poisons, noxious and dangerous substances are held to a strict accountability.
The highest degree of care known to practical men must be used to prevent injuries from the use of drugs and poisons. It is for these reasons that a druggist is held to a special degree of responsibility. The care required must be commensurate with the danger involved; the skill employed must correspond with that superior knowledge of the business which the law requires. Walton v. Booth, 34 La. Ann. 913; Cooley Torts, pp. 75, 76; Thomas v. Winchester, 6 N.Y. 397.
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