Levin v. Muser

• Decision Date: 27 June 1923
• Docket Number: 22447
• Citation: 194 N.W. 672,110 Neb. 515
• Parties: IDA LEVIN, ADMINISTRATRIX, APPELLANT, v. LOUIS MUSER, ADMINISTRATOR: RICHARDSON DRUG COMPANY, APPELLEE
• Court: Nebraska Supreme Court

194 N.W. 672

110 Neb. 515

IDA LEVIN, ADMINISTRATRIX, APPELLANT, v. LOUIS MUSER, ADMINISTRATOR: RICHARDSON DRUG COMPANY, APPELLEE

No. 22447

Supreme Court of Nebraska

June 27, 1923

APPEAL from the district court for Douglas county: L. B. DAY, JUDGE. Affirmed.

AFFIRMED.

Wymer Dressler and Robert D. Neely, for appellant.

Edwin M. Martin and Alfred C. Munger, contra.

Heard before MORRISSEY, C. J. LETTON, DEAN and GOOD, JJ BLACKLEDGE, District Judge.

OPINION

GOOD, J.

Ida Levin, as administratrix of the estate of Louis Levin deceased, brought this action against Richardson Drug Company, a corporation, engaged in the wholesale drug business, and Carl T. Schmidt, operating a retail drug store to recover damages for the wrongful death of plaintiff's decedent. Since the commencement of this action defendant Schmidt has died, and the action has been revived in the name of Louis Muser, as administrator of his estate. A general demurrer to the petition was interposed by Richardson Drug Company, which was sustained and the action as to it dismissed. Plaintiff has appealed, and the only question presented for our consideration is the correctness of the ruling on the demurrer.

Plaintiff alleges in her petition that the defendant Richardson Drug Company owned and had in its possession one certain bottle containing oil of mirbane, a deadly poison, and that ordinary care and prudence required said drug company, as a dealer in said poisonous and deadly agency, to label the same as a poison, so that persons handling or using said oil of mirbane would not inadvertently take the same internally and be injured or killed thereby; but that said drug company, disregarding its duties in the premises, sold and delivered the same to the defendant Schmidt, who in turn sold and delivered it to Louis Levin without any label thereon, except the words "oil of mirbane;" that Levin took the bottle home and on the same day, believing it to be a bottle of throat gargle, which he had been using, took some of the contents in his mouth and was thereby burned and choked, causing him to swallow some of the oil, which resulted in his death. Plaintiff alleges that each of the defendants was negligent in failing to label the bottle as a poison and that such negligence proximately caused the death of Levin.

1. Was the drug company negligent in selling the poisonous oil to a retail druggist without labeling it as poison? If such sale was negligence, was it the proximate cause of Levin's death? The statute of this state, regulating the sale of articles usually known as poisons, requires, if they are articles of medicine, that the word "poison" be marked on the label or wrapper of each package. There is no such statutory requirement as to the sale of poisons other than articles of medicine. There is no allegation in the petition that oil of mirbane is an article of medicine, or that it is ever used for medicinal purposes. Its sale without being labeled a poison violated no statutory requirement. That the drug company was not guilty of a wanton wrong is beyond question.

2. This court, in Spratlen v. Ish, 100 Neb. 844, 161 N.W 573, has held: "The proximate cause of an injury is that cause which, in the natural and continuous sequence, unaccompanied by any efficient intervening cause, produces the injury,...