Nesci v. Angelo

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: WAIT
• Citation: 144 N.E. 287,249 Mass. 508
• Decision Date: 12 June 1924
• Parties: NESCI v. ANGELO.

249 Mass. 508
144 N.E. 287

NESCI
v.
ANGELO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 12, 1924.

Exception from Superior Court, Suffolk County; Frederick Lawton, Judge.

Action of tort by Dominic Nesci, administrator of the estate of Elizabeth Nesci, deceased, against Nicholas Angelo, to recover for death of intestate. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.

John [249 Mass. 509]E. Crowley, of Boston, for plaintiff.

J. T. Zottoli, of Boston, for defendant.

WAIT, J.

This is an action brought against the proprietor of a drug store by the administrator of Elizabeth Nesci for negligence resulting in her conscious suffering and death.

There was evidence to show that Elizabeth Nesci died from the administration of strychnine contained in a medicine obtained at the drug store of the defendant and compounded by one Di Napoli, then in his employ. The prescription called for styptocin as one of the ingredients, and the presence of strychnine was due to a substitution of strychnine for styptocin in compounding the medicine. Strychnine is a deadly poison, and is never given in doses exceeding one-twentieth of a grain. Styptocin does not

[144 N.E. 288]

contain strychnine, and the prescription called for a dose of two grains.

The defendant contended that Di Napoli had no authority to put up the prescription and was not acting within the scope of his employment in compounding it. There was evidence that, when employed, Di Napoli was instructed that he was employed merely to sell cigars, candy, toilet articles, patent medicines, and such articles, but under no circumstances was he to put up prescriptions. He was not registered in Massachusetts under G. L. c. 112, § 24, as a pharmacist, and no inquiry was made in regard to his registration elsewhere. The defendant, himself registered, lived above the store and could be called at any time to fill prescriptions, and a registered pharmacist also was employed to be in the store when the defendant was away.

On the afternoon in question the defendant left the store about 1 o'clock and did not return till about 6 o'clock. [249 Mass. 510]He left Di Napoli alone in the store. There were signs: ‘Prescriptions Filled.’ No one but Di Napoli was in the store when the prescription was left with him to be filled, and no one but Di Napoli was there when the medicine was delivered by him. The defendant testified that he left a telephone number by which he could be summoned if any...