McGahey v. Albritton
| Decision Date | 18 March 1926 |
| Docket Number | 6 Div. 615 |
| Citation | 214 Ala. 279,107 So. 751 |
| Parties | McGAHEY v. ALBRITTON. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.
Action by Beatrice Albritton against R.G. McGahey. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.
Beddow & Ray, of Birmingham, for appellant.
W.F Spencer and Ralph W. Quinn, both of Birmingham, for appellee.
This is a suit by Beatrice Albritton, the mother of Doris Albritton a minor child of tender years, against R.G. McGahey, doing business as Tuscaloosa Avenue Drug Company, for damages sustained by her as a proximate consequence of the defendant by its clerk, in the performance of his duties under his employment, negligently placing a harmful drug, to wit calomel in filling a prescription of a physician for her child, which drug was not called for by the prescription, and which made the child sick, and plaintiff had to nurse the said child, employ a physician to attend it, and pay for medicine for it. The defendant pleaded in short by consent the general issue, with leave to give in evidence any matter which, if well pleaded, would be admissible in defense of the action with plaintiff to have leave to give in evidence any matter which, if well pleaded, would be admissible in reply thereto. There was a verdict in favor of the plaintiff, and from a judgment thereon by the court, this appeal is prosecuted by the defendant.
There is one count in the complaint, which was amended, and as amended, demurrers of the defendant to it were overruled by the court.
It appears from the complaint that defendant is a druggist. The plaintiff secured from a physician a prescription for her child, and sent it to the defendant to be filled. The clerk of the defendant, while acting in the line of his employment, filled this prescription by placing in it calomel, which was not called for by the prescription. Calomel was harmful and injurious to the child in its condition. It was the duty of the druggist to fill the prescription, after it undertook to do so, with care and "with that degree of diligence and prudence which is commensurate with the danger involved." Martin v. Manning, 92 So. 659, 207 Ala. 360; 19 C.J. p. 778, § 36, headnotes 41, 42.
The complaint avers that duty, and shows a breach thereof, and as a proximate consequence the child was made sick, and continued sick from it for weeks, and that plaintiff was caused thereby to spend her time nursing this child, had to employ a physician to attend it, and incurred the expense of drug bills for it. It appears from this count of the complaint that the child is of tender years, resides with its mother, the plaintiff, and its father had deserted them, and, under such circumstances, when the child became sick, it was the duty of its mother, the plaintiff, to nurse or employ a nurse for it, to secure at her expense a physician to attend it, and to purchase necessary drugs for it. Englehardt v. Yung's Heirs, 76 Ala. 534; B.R.L. & P. Co. v. Baker, 49 So. 755, 161 Ala. 135, 135 Am.St.Rep. 118, 18 Ann.Cas. 477; § 5694, Code of 1923.
It further appears from the complaint that this sickness of the child was proximately caused by the foregoing negligent act of the defendant through his clerk while in the course of his employment, and, if true, the defendant would be liable to plaintiff for reasonable amounts necessarily expended or incurred by her in and about the treatment and care of the child, and for the value of the parent's services while nursing it during this sickness. B.R.L. & P. Co. v. Baker, supra, and authorities supra.
It results that this count, as amended, states a cause of action against the defendant, and the court did not err in overruling the demurrer to it. Section 5694, Code of 1923; Martin v. Manning, 92 So. 659, 207 Ala. 360, and authorities supra.
The defendant requested, and the court refused to give, the general affirmative charge with hypothesis in his favor. The defendant insists that his motion for new trial should also have been granted on the ground the evidence does not sustain the verdict, and there is insufficient evidence to entitle the plaintiff to recover.
The evidence is in striking conflict as to whether the prescription as filled by the defendant contained calomel. The prescription did not call for calomel, but for harmless medicine. There is evidence that it contained calomel, and there is some slight testimony tending to show that this calomel was the cause of the continued illness of the child and there is much evidence to the contrary. The scintilla of...
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