McLeod v. W. S. Merrell Co., Division of Richardson-Merrell, Inc.

• Decision Date: 13 October 1964
• Docket Number: RICHARDSON-MERREL,No. 64-30,INC,64-30
• Citation: 167 So.2d 901
• Parties: John McLEOD, a citizen and resident of Dade County, Florida, Appellant, v. W. S. MERRELL COMPANY, DIVISION OF, International Pharmacies, Inc., and James Drug Shop, Inc., Jointly and severally, Appellees.
• Court: Florida District Court of Appeals

Page 901

167 So.2d 901

John McLEOD, a citizen and resident of Dade County, Florida, Appellant, v. W. S. MERRELL COMPANY, DIVISION OF RICHARDSON-MERRELL, INC., International Pharmacies, Inc., and James Drug Shop, Inc., Jointly and severally, Appellees.

No. 64-30.

District Court of Appeal of Florida, Third District.

Oct. 13, 1964.

Nichols, Gaither, Beckham, Colson & Spence and Alan R. Schwartz and Robert Orseck, Miami, for appellant.

Walton, Lantaff, Schroeder, Atkins, Carson & Wahl, Miami, for W. S. Merrell Co.

Sherous & Corlett and Richard M. Gale, Miami, for International Pharmacies, Inc.

Blackwell, Walker & Gray and James E. Tribble and Paul R. Larkin, Jr., Miami, for James Drug Shop.

Before BARKDULL, C. J., and CARROLL and HENDRY, JJ.

HENDRY, Judge.

Plaintiff appeals the dismissal of his complaint against two of the three defendants. The complaint alleges that plaintiff suffered personal injuries as a result of taking a drug know as 'Mer/29' which defendants had impliedly warranted to be fit for human consumption and of merchantable quality. The drug was prescribed by plaintiff's physician, a medical doctor, to control excess body cholesterol. The defendant, W. S. Merrell Company, manufactured the product and sold it to the defendants, International Pharmacies and James Drug Shop who filled the plaintiff's prescriptions. The drug as formulated and distributed by the manufacturer was the alleged cause of the injury. There is no contention that the product as dispensed to plaintiff contained any foreign matter.

The trial court dismissed plaintiff's complaint as to the two drug stores on the ground that there were no implied warranties running from the druggist who fills a doctor's prescription with an unopened and uninspected product to the purchaser thereof.

This appeal raises the novel question of whether a retail druggist impliedly warrants the products he dispenses pursuant to a doctor's prescription where there is no opportunity for inspection, and there is no foreign material in the product, but injury results because of the nature of the product. There are, of course, several questions intertwined in the issue above stated.

We do not feel it necessary to outline the history of the development of the law of product's liability in Florida, inasmuch as, this service has been amply performed by Judge Rives of the U. S . Court of Appeals in Green v. American Tobacco Company, 304 F.2d 70 (5th Cir. 1962). We refer all students of this area of the law thereto. We shall, however, discuss several of the cases in this area which had a bearing upon our conclusions.

In Cliett v. Lauderdale Biltmore Corporation, Fla.App.,1949, 39 So.2d 476 the proprietor of a hotel served unwholesome food to its paying guests, who became ill as a result of the impurity. The innkeeper sought to avoid liability on the ground that no implied warranty attached because this was a 'service as opposed to a sale', in that, the innkeeper simply served food produced by another. The court rejected this argument, saying:

'We can perceive no substantial basis for holding a restaurant keeper who serves food for immediate consumption on the premises to a less degree of responsibility than that imposed upon a retailer who sells food for immediate consumption off the premises. Whether such a transaction be termed a service or a sale every argument for implying a warranty in the ordinary sale of food over the grocery counter for consumption off the premises would seem to be applicable with as great a degree of force to the purchase of a meal for consumption in a hotel dining room or restaurant.' 39 So.2d at 478.

The court, by this decision, disposed of...