People's Serv. Drug Stores, Inc. v. Somerville

• Decision Date: 14 January 1932
• Docket Number: No. 95.,95.
• Citation: 158 A. 12
• Parties: PEOPLE'S SERVICE DRUG STORES, Inc. v. SOMERVILLE.
• Court: Maryland Court of Appeals

158 A. 12

PEOPLE'S SERVICE DRUG STORES, Inc.

v. SOMERVILLE.^*

No. 95.

Court of Appeals of Maryland.

Jan. 14, 1932.

Appeal from Circuit Court, Allegany County; Albert A. Doub, Judge.

Action by Harvey L. Somerville against the People's Service Drug Stores, Incorporated. From a judgment for plaintiff, defendant appeals.

Reversed without a new trial.

Argued before BOND, C. J., and PATTISON, URNER, ADKINS, OFFUTT, PARKE, and SLOAN, JJ.

F. Brooke Whiting and Walter C. Capper, both of Cumberland, for appellant.

Fuller Barnard, Jr., of Cumberland (Saul Praeger, of Cumberland, and Joseph H. A. Rogan, of Baltimore, on the brief), for appellee.

ADKINS, J.

The appellee sued the appellant for alleged injuries resulting from taking three capsules, each containing 1/4 grain of strychnine with other ingredients, compounded by appellant on the prescription of a regularly licensed physician practising in Cumberland, Md.

The jury found a verdict for appellee, and this appeal is from a judgment on that verdict.

The capsules were taken at intervals of two hours, as directed by the prescription. Following the taking of the third capsule, plaintiff became stiff and could not get up from his chair or sit down. According to his testimony and that of several physicians, from that time he has been in a weakened and nervous condition, and they attribute that condition to an overdose of strychnine. The testimony of several physicians and druggists offered by plaintiff is that the ordinary dose of strychnine is 1/30 of a grain. Two of these physicians testified that ordinarily 1 1/2 grains was a fatal dose. One of them said that 1/2 grain is the least that would cause death, and that a case was reported where 15 grains was not fatal. It was also testified by medical witnesses for plaintiff that the effects of strychnine are usually eliminated from the system within a few hours.

The prescription was accurately filled. The complaint here is, not that the druggist failed to follow directions, but that he did not refuse to fill the prescription prescribed because the dose prescribed was too large; that he filled the prescription "without making any inquiry of the purchaser either as required by the Maryland Statute (Annotated Code, art. 27, §§ 456, 457)—or any other inquiry of the physician or the purchaser."

The sections of the Code referred to provide as follows:

"456. It shall be unlawful for any person, to retail any of the following poisons: arsenic * * * strychnine * * * without distinctly labeling the box, vessel or paper in which the said poison is contained with the name of the article the word 'Poison' and the name and place of business of the seller."

"457. Nor shall it be lawful for any registered pharmacist or other persons to sell any of the poisons in section 456 enumerated without causing an entry to be made in a book kept for that purpose, stating the date of sale, the name and address of the purchaser, the name of the poison sold, the purpose for which it is represented by the purchaser to be required, and the name of the dispenser, such book to be always open for inspection * * * and to be preserved for at least five years. The provisions of this section shall not apply to the dispensing of poisons in not unusual quantities or doses, upon the prescription of practitioners of medicine. Any violation of the provisions of sections 456 and 457 shall make the offender liable to a fine of not less than five dollars and not more than one hundred dollars."

The only violation of either of these sections of which there is any evidence (assuming that the testimony of Mrs. Somerville without the offer of the box, was admissible) is that the box was not labeled "poison" or "strychnine." And there is no evidence that this violation was the proximate cause of the injury complained of. The violation of a statute will not support an action for damages on account of an injury sustained, unless such violation is the proximate cause of the injury. Baltimore & O. R. Co. v. State, to Use of Miller, 29 Md. 252, 96 Am. Dec. 528; McMahon's Case, 39 Md. 438; McDonnell's Case, 43 Md. 534; Reidel v....