Knoefel v. Atkins

• Decision Date: 07 June 1907
• Docket Number: No. 5,952.,5,952.
• Citation: 81 N.E. 600,40 Ind.App. 428
• Parties: KNOEFEL v. ATKINS.
• Court: Indiana Appellate Court

40 Ind.App. 428

81 N.E. 600

KNOEFEL

v.ATKINS.

No. 5,952.¹

Appellate Court of Indiana, Division No. 2.

June 7, 1907.

Appeal from Circuit Court, Clarke County; H. C. Montgomery, Judge.

Action by Martha Atkins against Charles D. Knoefel. Judgment for plaintiff, and defendant appeals. Reversed, and new trial instructed.C. D. Kelso, G. H. Voigt, and C. W. Schindler, for appellant. C. L. & H. E. Jewett, T. J. Brock, and A. Dowling, for appellee.

RABB, J.

The appellee sued appellant to recover damages alleged to have been sustained from injuries resulting to her from the effects of taking a poisonous drug alleged to have been negligently sold by the appellant as and for a harmless remedy. General denial was filed to the complaint; a trial by jury, resulting in a general verdict in favor of appellee, assessing her damages at $2,000, and with the general verdict answers to interrogatories submitted to the jury. The only error complained of was the action of the court below in overruling appellant's motion for a new trial. The grounds of the motion urged in this court are (1) the insufficiency of the evidence to sustain the verdict; (2) error of the court in admitting in evidence certain testimony of witness Thomas Barnett; (3) the giving by the court of instructions 1, 2, 6, and 7, asked for by appellee; and (4) that the damages assessed are excessive.

The complaint avers that the appellant was at the time of the transaction complained of the proprietor of a drug store in the city of New Albany, engaged in the sale of drugs at retail; that appellee's mother, Dorcas Scott, directed one Henry Wolfe to purchase for her a quantity of phosphate of soda; that phosphate of soda is a medical compound, harmless and beneficial in its effect, when taken as a medicine, and which could be safely administered without medical advice in quantities as large as two teaspoonsful at a single dose; that said Wolfe, pursuant to the request and direction so given him, went to the drug store of the appellant, and ordered 10 cents' worth of phosphate of soda, and that thereupon the appellant's salesman carelessly and negligently delivered to said Wolfe, for said Dorcas Scott, a package purporting to contain phosphate of soda, but which, in fact, contained an entirely different drug, called “acetanilide”; that said drug so delivered by said clerk to said Wolfe is a chemical compound of a highly poisonous nature, and so injurious in its effects as to be unsafe to take as a medicine except in small doses and under medical direction; that, when taken in doses of one teaspoonful or more, it was and is injurious and poisonous in its effects upon the human system; that both phosphate of soda and acetanilide are white substances, similar in general appearance to one not familiar with drugs, but easily distinguished from each other by careful and competent druggists. There are other averments in the complaint to the effect that the said Edward Mayes was negligent in the sale of said acetanilide to said Wolfe, in that he negligently and hastily picked up the receptacle in which said poisonous acetanilide was contained, and, without looking at the label or outside of said receptacle to ascertain what substance was in it, poured the entire contents of said receptacle into a paper upon the scales, and in that said salesman and agent of appellant negligently failed to look at said substance when weighing the same to see whether it was or was not phosphate of soda, whereas, if he had examined said drug while he was weighing it, he could have discovered that it was not phosphate of soda, but was acetanilide, and in that the salesman negligently wrapped up and delivered said acetanilide to said Wolfe without placing a mark or label thereon to indicate that the same was acetanilide; that the appellee, while at the home of her mother, and as an inmate of her family for the time being, desiring to take a purgative medicine, at the direction of her mother, took two teaspoonsful of said drug, believing it to be phosphate of soda, and that as a consequence she became very sick and was disabled for a long while, and suffered injury.

One of the errors complained of by the appellant is that the evidence is not sufficient to sustain the verdict, in that it does not sufficiently show the negligence of the druggist in making the sale. In determining the question of the sufficiency of the evidence, the court will not undertake to weigh the evidence; but will consider only that evidence which is most favorable to the appellee, not only the facts proven, but all the inferences that may reasonably be drawn from the facts proven, and, if they are sufficient to sustain the verdict, the court cannot set it aside on account of the sufficiency of the evidence. Two questions arise in considering the sufficiency of the evidence to sustain the verdict of the jury: (1) Did the appellant make a mistake, and sell and deliver to the witness Wolfe, the agent of Dorcas Scott, acetanilide for phosphate of soda, and did the appellee take the drug thus sold by appellant, and sustain injury thereby? (2) Was the appellant guilty of negligence in making the mistake?

In considering the first question, the only serious point that arises is the sufficiency of the proof to identify the drug taken by appellee with the drug delivered by appellant's clerk to the witness Wolfe. The testimony of Wolfe is abundantly sufficient to show that he called on appellant's clerk for a dime's worth of phosphate of soda, and that the clerk wrapped up and delivered to him a package, in a brown paper, which Wolfe afterwards delivered into the hands of Miss Ida Scott, and that she put this package in a basket on top of her mother's cupboard in the dining room of her mother's home, on Saturday afternoon, February 28th; that on Monday, March 2d, appellee took from this same basket a package wrapped in brown paper, and took therefrom a teaspoonful and a half of acetanilide. The evidence is entirely silent upon the question as to what else beside the package from which appellee took the dose the basket contained, or whether it was the only package in the basket at the time Miss Scott placed the same in it and at the time appellee took the package out of it. It must be confessed that appellee's case would have been much stronger had the evidence affirmatively disclosed that there were no other similar packages in the basket at the time the package was taken out of it by appellee, and that there was not at that time, nor at any time after Miss Scott received the package, any similar package containing phosphate of soda in the basket. On the other hand, the appellant's defense would have been complete had it been shown that the basket contained, besides the package from which appellee took the dose, a package of phosphate of soda, and the appellee's case would have been greatly weakened had the evidence shown that there were at the time other packages in the basket similar in appearance to the one from which appellee took the dose. But none of the witnesses who knew about the facts were asked a question by either party on the subject of the contents of the basket from which appellee took the package. If the appellee or any of her witnesses had been asked regarding the contents of the basket, and she or they had refused to answer, or had answered evasively, the jury might well have assumed that there were other packages contained in the basket beside the one from which appellee took the dose, and that one of these contained phosphate of soda. The entire examination of the witnesses seems to have proceeded upon the assumption on the part of both parties that the package from which appellee took the dose was the identical package delivered by Wolfe to Miss Ida Scott. In this state of the evidence there is no presumption, either one way or the other, as to other packages being in the basket, and the court cannot say that the circumstances proven did not justify the finding of the jury that the package from which appellee took the poisonous dose was the same package sold and delivered by appellant's clerk to Wolfe.

Was the appellant guilty of negligence in making the mistake? In the consideration of this question, we can well consider also the complaint urged by appellant against the seventh instruction asked by the appellee and given by the court to the jury, to the effect that, “when a druggist sells drugs or medicines to a customer, he impliedly warrants that they are of the character called for, and he is bound to know the properties of the medicine he vends.” It is not, generally speaking, necessary in actions for negligence that the complaint set forth the circumstances which tend to show negligence. It is sufficient to allege generally the doing of the act that led to the injury, and that it was negligently done. The alleged wrongful act charged in the appellee's complaint in this case as leading to the appellee's injury was the delivery by appellant's clerk to Wolfe, the agent of Dorcas Scott, when he called for phosphate of soda, the poisonous drug acetanilide, and to allege that this act was negligently done was sufficient. In Davis v. Guarnieri, 45 Ohio St. 485, 15 N. E. 350, 4 Am. St. Rep. 548, it was contended that no act of negligence could be proven except as specifically alleged in the petition. The court say in that case: “The wrongful act complained of, the act which led to the injury, was carelessly selling and delivering to the plaintiff a deadly poison instead of the harmless remedy called for. The allegations in the pleading that the party complained against negligently committed the particular act which led to the injury, where redress is sought, furnishes the predicate for the proof of all such incidental facts and circumstances, both of omission and commission, as fairly tend to establish the negligence complained of.” The case of Fisher v. Golladay, 39 Mo. App. 531, is to the same...