McKibbin v. F. E. Bax & Company

• Decision Date: 12 July 1907
• Docket Number: 14,926
• Citation: 113 N.W. 158,79 Neb. 577
• Parties: HARRY C. MCKIBBIN, APPELLANT, v. F. E. BAX & COMPANY, APPELLEES
• Court: Nebraska Supreme Court

113 N.W. 158

79 Neb. 577

HARRY C. MCKIBBIN, APPELLANT, v. F. E. BAX & COMPANY, APPELLEES

No. 14,926

Supreme Court of Nebraska

July 12, 1907

APPEAL from the district court for Dawson county: BRUNO O HOSTETLER, JUDGE. Affirmed.

AFFIRMED.

H. D Rhea, for appellant.

H. M Sinclair and Warrington and Stewart, contra.

OPINION

DUFFIE, C.

The defendants are partners conducting a drug store at Lexington, Nebraska. On June 24, 1905, a clerk in the store sold to one Roy Barron, a minor 18 year old, a bottle of croton oil containing one or two drams. The medical witnesses describe croton oil as a drastic purgative. Barron and a companion put a few drops of the oil on a pie, some of which they induced Charles McKibbin, the minor son of the plaintiff, to eat, causing him great pain, distress and sickness from which he suffered for some days. This action is brought by the plaintiff for loss of services of his son and for medicine and doctor's bills. Article III, ch. 55, Comp. St. 1905, provides for a board of pharmacy, who are to examine and grant certificates of registration to persons found competent to act as pharmacists. Section 8, art. III, ch. 55, supra, provides a penalty for any proprietor of a pharmacy who permits the compounding or dispensing of prescriptions or the vending of drugs, medicines or poisons in his place of business, except by or in the presence of or under the supervision of a registered pharmacist. Section 42 of our criminal code relates to dispensing poisons, and provides for keeping a register of the name, age, sex, place of abode of the purchaser, the quantity sold, and writing the word "poison" upon the package or wrapper. It further makes it unlawful to either sell or give away any article of poison to minors of either sex. Section 44 provides a penalty for the violation of section 42. It is alleged in the petition that the clerk who sold the croton oil to Barron was not a registered pharmacist; that the bottle containing the oil was not labeled poison; and that no registry of the sale was made as required by section 42 of our criminal code; and it is upon these grounds that it is sought to make the defendants liable. The case was tried to the court without the intervention of a jury, and judgment was entered for the defendants upon the ground that the unlawful sale was not the proximate cause of the injury to plaintiff's son.

It is urged with much earnestness that the sale of the poisonous drug to Roy Barron, a minor, in violation of our statute, was the great and moving cause of the injury to the son of the plaintiff, and that defendants are legally responsible for all damages accruing from their unlawful act. In the leading case of Thomas v. Winchester, 6 N.Y. 397, it was held that a manufacturing druggist who sold a poisonous drug labeled as harmless was liable in damages to a person who without carelessness on his part and relying on the erroneous label, took such drug as a medicine, on the ground of breach of public duty, and this whether the injured person was an immediate customer of the defendant or not. In that case it is said: "The defendant was a dealer in poisonous drugs. Gilbert was his agent in preparing them for market. The death or great bodily harm of some person was the natural and almost inevitable consequence of the sale of belladonna by means of the false label." In that case it was urged by defendants' counsel that the damages were too remote, and it was argued that if a horse be defectively shod by a smith, and a person hiring the horse from the owner is thrown and injured in consequence of the smith's negligence in shoeing, the smith is not liable for the injury; that, although the injury to the rider may have happened in consequence of the negligence of the smith, the latter was not bound, either by his contract or by considerations of public policy or safety, to respond for his breach of duty to any one except the person he contracted with. In reply to this and other similar examples found in defendants' brief, the court said: "In respect to the wrongful and criminal character of the negligence complained of, this case differs widely from those put by the defendant's counsel. No such imminent danger existed in those cases. In the present case the sale of the poisonous article was made to a dealer in drugs, and not to a consumer. The injury therefore was not likely to fall on him, or on his vendee who was also a dealer; but much more likely to be visited on a remote purchaser, as actually happened. The defendant's...