Peterson v. Westman

• Decision Date: 15 December 1903
• Citation: 77 S.W. 1015,103 Mo.App. 672
• Parties: PETERSON, Respondent, v. WESTMAN, Appellant
• Court: Missouri Court of Appeals

77 S.W. 1015

103 Mo.App. 672

PETERSON, Respondent, v. WESTMAN, Appellant

Court of Appeals of Missouri, St. Louis

December 15, 1903

Appeal from St. Louis City Circuit Court.--Hon. H. D. Wood, Judge.

AFFIRMED.

Judgment affirmed.

Thomas G. Rutledge for appellant.

(1) The verdict is against the evidence. This case was one for the court, and not for the jury. The court should have sustained a demurrer to the evidence. Fowler v. Randall, 73 S.W. 931 (Mo. App.); Van Lien v. Scofield Mfg. Co., 14 Abb. Pr. N. S. 74. (2) Even though the druggist had been negligent in selling carbolic acid instead of arnica, that sale was not the proximate cause of the injury. The nature of the drug was known to Dr. Baird, who examined the bottle before its use, and directed its application, and also to plaintiff's wife, who applied the contents to the finger. The negligence of these two intervened between the sale and the accident, and were sufficient causes to have produced the injury. Carter v. Towne, 98 Mass. 567; Carter v Towne (s. c.), 103 Mass. 507; Hackett v. Pratt, 52 Ill.App. 346; Washington v. Railroad, 17 W.Va 190. (3) The ordinary purpose for which carbolic acid was used in plaintiff's family was harmless. The proximate cause of plaintiff's injury was not the sale of the acid but the subsequent use of it by Dr. Baird and plaintiff's wife. Meyer v. King, 1 Miss. 1; Poland v. Ehrhart, 70 Ia. 285; King v. Henkie, 80 Ala. 510; Scheffer v. Railway, 105 U.S. 249; 1 Sutherland on Damages, sec. 34. (4) Instruction No. 1 given for plaintiff is erroneous, in requiring the jury to find in favor of the plaintiff, merely if they believed that the boy Leo asked the druggist for arnica. It completely ignores the question of a label; it ignores any negligence on the part of the plaintiff; it ignores plaintiff's knowledge of the real contents of the bottle and the character thereof, or the danger of its use; it ignores the knowledge that his agents have of the contents of the bottle, and whether he was charged with this knowledge. Neither are these matters covered by the other instructions given. Hill v. Drug Co., 140 Mo. 433; Carroll v. Transit Co., 107 Mo. l. c. 662; Van Lien v. Scofield Mfg. Co., 14 Abb. Pr. N. S. 74; Van Bach v. Railway, 171 Mo. 338. (5) Plaintiff was bound to know all his agents knew. The knowledge of Dr. Baird and plaintiff's wife was such as should bar a recovery by plaintiff. Fowler v. Randall, 73 S.W. 931; Madison v. Railroad, 60 Mo.App. 605; Mechem on Agency, sec. 721; State ex rel. v. Stiltington, 51 Mo.App. 252; Hayward v. Ins. Co., 52 Mo. 181, 191. (6) The court erred in refusing defendant's instructions "D" and "F," and refusing to instruct the jury that plaintiff could not recover if the bottle had a legible label marked "Carbolic Acid," and in completely ignoring the defense. Fisher v. Golladay, 38 Mo.App. 531; Jones v. George, 56 Texas 149; Cameron v. Hart, 57 Mo.App. 142.

Carter & Sager, and John B. Denvir, Jr., for respondent.

(1) The verdict is for the right party, and is amply sustained by the evidence. Fisher v. Golladay, 38 Mo.App. 531; Fowler v. Randall, 73 S.W. 931 (Mo. App.). (2) The laws of agency have no application in case like this. (3) The instructions given fully cover the case and correctly express the law. Baker v. City of Independence, 93 Mo.App. 165; Alberger v. White, 117 Mo. 347; Bank v. Hatch, 98 Mo. 376; Tyler v. Tyler, 78 Mo.App. 240; Regan v. Railroad, 144 Mo. 623. (4) The court did not err in refusing defendant's instructions marked "D" and "F." Jones v. Packet Co., 43 Mo.App. 398; Connolly v. Printing Co., 166 Mo. 447.

BLAND, P. J. Reyburn and Goode, JJ., concur.

OPINION

BLAND, P. J.

This suit was commenced before a justice of the peace where plaintiff filed the following complaint:

"Plaintiff states that on the thirty-first day of March, 1902, he bruised and injured his finger. That being desirous of relieving the pain caused by such injury, he sent his agent to the drugstore of defendant to procure arnica to apply to said injury. That said agent asked defendant for arnica, but defendant, instead of giving plaintiff's agent arnica, negligently and carelessly gave him carbolic acid. That plaintiff being ignorant of the fact that he had received carbolic acid instead of arnica, applied said carbolic acid to his finger. That said carbolic acid ate into the flesh of said finger and rendered it unfit for use; that said finger is still unfit for use and plaintiff has been unable to follow his ordinary avocation in life since the twenty-first day of March, 1902, to his great loss.

"That plaintiff has suffered and still suffers great pain and anguish from the hurt to his finger caused by said carbolic acid, and has been put to great expense for medical attention and medicine. That in consequence of the premises he has been damaged in the sum of five hundred ($ 500) dollars.

"Wherefore, plaintiff prays judgment against defendant for the sum of five hundred ($ 500) dollars and his costs."

The cause was appealed to the circuit court where on a trial anew, plaintiff recovered judgment for $ 500, from which defendant duly appealed.

The evidence shows that plaintiff is a stone mason and while laying a stone in a wall, the end of the middle finger of his right hand was caught under the stone and bruised. Plaintiff worked on until night and then went to his home, which was over a drug store kept by the defendant. After he arrived home, he asked for a penknife for the purpose of boring a hole in the nail of the injured finger to let out the bad blood that had gathered under the nail. A medical student named Baird was boarding at plaintiff's house and was present and advised plaintiff to put arnica on the finger to take out the soreness. Plaintiff's wife had previously, on several occasions, bought carbolic acid of the defendant and had at this time a bottle containing some carbolic acid, which she poured out and then washed the bottle. The bottle had a carbolic acid label on it. After she had washed the bottle, she handed it to her son Leo, a boy twelve years old, who was given a nickel by his father (the plaintiff) and told to go down to defendant's drug store and get a nickel's worth of arnica. The boy did as he was told and returned in a few minutes with the bottle with the same label upon it and filled with carbolic acid. The student Baird picked up the bottle and looked at it, but did not discover that it contained carbolic acid and told plaintiff to wet the rag with arnica and wrap up his finger. Plaintiff got a rag, saturated it with the contents of the bottle and wrapped his finger up and poured a few drops of the acid on the rag. The next morning the plaintiff looked at his finger and put some more carbolic acid on it, supposing it to be arnica, and went to work. In a few days he was compelled to go to a doctor who found the end of his finger so badly burned and cooked by the acid that he had to cut it off at the first joint.

The boy Leo testified that he asked the defendant for a nickel's worth of arnica; that the defendant took the bottle and went back of the counter and handed it to him filled; that defendant did not put a fresh label on the bottle; that he (witness) had never heard of arnica before.

The defendant testified that he had been in the drug business since 1876; that when Leo came into the store he had a bottle with a carbolic acid label on it, fresh and clean, with skull and crossbones, and when he got ready to wait on the boy, he took the bottle and asked him, "Carbolic Acid?" Leo said, "Yes, sir;" that the boy asked for carbolic acid and he repeated after him, "carbolic acid," and he said, "yes, sir;" that the label was marked "carbolic acid" in red letters and the word "Poison" was written on it in red letters. Plaintiff's witnesses testified that the label was scratched and partly washed off when the bottle was sent by the boy for the arnica.

The court gave the following instructions for the plaintiff:

"1. If the jury believe from the evidence that on, or about March 31, 1902, the plaintiff sent his son to the drugstore of the defendant to procure arnica, that said son asked the defendant for arnica, and the defendant sold and delivered to him carbolic acid instead of arnica, and if you believe from the evidence that in so selling the plaintiff carbolic acid the defendant failed to use ordinary care, as defined in instruction No. 2, then you will find your verdict in favor of the plaintiff, if you find that the plaintiff and his agent exercised ordinary care at the time.

"2. By the term of 'ordinary care' as used in the instructions, is meant that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances. A failure to exercise ordinary care, as so defined, is negligence.

"3. If the jury find for the plaintiff, they should assess his damages at such a sum as they may find from the evidence will be a fair compensation to him; first, for any pain of body or mind caused by the loss of the first joint of the middle finger of his right hand, and directly caused by such injury; second, for any loss of earnings resulting directly from said injury; third, for any loss necessarily incurred for medicines and medical attention, not to exceed the sum of $ 500, the amount sued for.

"4. The court instructs the jury that, in considering its verdict, the jury must not be governed by sympathy for plaintiff, because he met with an injury, nor have any prejudice or feeling either in favor of or against plaintiff or defendant, but the jury should, in arriving at its verdict, be governed solely by the evidence in the case and the instructions of the court. And the court further instructs the jury that the burden of proof...