Johnson v. Primm

• Decision Date: 08 September 1964
• Docket Number: No. 7433,7433
• Parties: Henry Oliver JOHNSON and Wilmoth Johnson, Plaintiffs-Appellants, v. C. C. PRIMM, d/b/a Primm Rexall Drug, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 426

396 P.2d 426

74 N.M. 597

Henry Oliver JOHNSON and Wilmoth Johnson, Plaintiffs-Appellants, v. C. C. PRIMM, d/b/a Primm Rexall Drug, Defendant-Appellee.

No. 7433.

Supreme Court of New Mexico.

Sept. 8, 1964.

Rehearing Denied Nov. 23, 1964.

Thomas B. Forbis, Roswell, for appellants.

Atwood & Malone, Roswell, for appellee.

MOISE, Justice.

Plaintiff complains here of the granting of defendant's motion for summary judgment.

The complaint was filed in this action on behalf of the plaintiff for her personal injuries, on behalf of the husband as the community representative for losses sustained by the community from defendant's alleged negligence, and on behalf of the husband in his personal capacity for loss of consortium. The allegations were that defendant had failed to exercise due care in selling plaintiff a drug (equanil) in excess of the amount prescribed.

The following facts are not disputed. Mrs. Johnson, the plaintiff, called at the office of Dr. Kaiser in Roswell complaining of pains in her back in October, 1960. Dr. Kaiser prescribed equanil (Milltown) for Mrs. Johnson, to relieve the muscle spasms believed to be causing the difficulty. The prescription was for 24 tablets, to be taken three times a day after meals. These directions appeared on the label of the bottle which was delivered to Mrs. Johnson by the pharmacist at defendant's drug store. In November, 1960, Mrs. Johnson requested that the prescription be refilled. At that time Mr. Primm, the defendant, phoned Dr. Kaiser to determine if he was authorized to refill the prescription. The instructions from Dr. Kaiser were, in substance, that Mrs. Johnson should be permitted to 'have a few along as she needs them.' Based on these instructions, the prescription on file with Mr. Primm was marked, 'P.R.N.,' or prescription refillable as needed.

The prescription was refilled at this time with the same instructions as to dosage that appeared on the original container, and with 24 pills. Mrs. Johnson continued to take the equanil as prescribed until March or April, 1961. At this time she began to increase the number of pills she was taking per day, and in June or July, 1961, she was taking seven to ten equanil pills per day and continued on this dosage until February, 1962, when she was taken to Ft. Worth, Texas, for treatment by Dr. Furman. When Dr. Furman 'withdrew' the plaintiff from the use of equanil, she convulsed for six hours. She has also suffered brain and liver damage caused by the prolonged overdose of equanil.

During the time Mrs. Johnson was taking equanil all her prescriptions for the drug were filled by the defendant, with three exceptions in the fall of 1961. According to the depositions and affidavits in this case, it is apparently undisputed that every container sold by defendant to Mrs. Johnson with equanil in it was labeled with the directions that the drug was to be taken three times a day after meals.

Some time in early 1961 the defendant suggested to Mrs. Johnson that because she was taking equanil regularly, it would be less expensive if she bought in lots of 100 pills. The number of times that the prescription was filled in hundred tablet lots is not clear. The defendant, in his affidavit, claims that according to his records the prescription was filled only once with one hundred tablets. Plaintiff, in her deposition, says that she had the prescription filled in hundred tablet lots from April, 1961 until February, 1962, depending on how much money she had at the time. If she did not have enough for 100 tablets, she would get a refill of twenty-four.

As already noted, the trial court sustained a motion for summary judgment in favor of defendants and against Mrs. Johnson for her personal injuries, and against Mr. Johnson in his capacity as the representative of the community.

The questions presented for our consideration are the following:

(1) Was the increasing of the dosage by the plaintiff over that prescribed, the proximate cause of the injuries sustained by plaintiff, or was the sale of equanil in one hundred tablet lots rather than twenty-four the proximate cause; or

(2) Was plaintiff's violation of the doctor's instructions contributory negligence that proximately caused the injury, thereby barring any recovery against defendant?

Summary judgment, as often announced by this court, is not a substitute for trial. Ginn v. MacAluso, 62 N.M. 375, 310 P.2d 1034; Michelson v. House, 54 N.M. 197, 218 P.2d 861. The purpose of summary judgment is to determine if there is a genuine issue of fact to be submitted to the trier of facts. Zengerle v. Commonwealth Ins. Co. of New York, 60 N.M. 379, 291 P.2d 1099; McLain v. Haley, 53 N.M. 327, 207 P.2d 1013. It is not to be used to determine the facts. Wieneke v. Chalmers, 73 M.M. 8, 385 P.2d 65; Securities Acceptance Corp. of Santa Fe v. Valencia, 70 N.M. 307, 373 P.2d 545.

In considering a motion for summary judgment, the court is required to construe and question of the existence of a material issue of fact against the moving party. Pederson v. Lothman, 63 N.M. 364, 320 P.2d 378; Allied Bldg. Credits, Inc. v. Koff, 70 N.M. 343, 373 P.2d 914. Sometimes the basic facts may be undisputed, but conflicting inferences may be drawn from the facts that would foreclose the granting of summary judgment. Hewitt-Robins, Inc. v. Lea County Sand & Gravel, Inc., 70 N.M. 144, 371 P.2d 795.

With this background, is either of the points noted capable of decision as a matter of law when considered with the depositions and affidavits filed in this case?

For the purpose of decision we assume, but do not decide, that the affidavits and depositions before the court were sufficient to establish negligence of the defendant. However, did this negligence proximately cause or contribute to plaintiff's injuries? Did these same depositions and affidavits establish contributory negligence on the part of Mrs. Johnson which proximately contributed thereto? There can be no recovery unless defendant's negligence was the proximate cause of the injury and plaintiff's contributory negligence did not proximately...