Raines v. Small

• Decision Date: 01 February 1943
• Docket Number: No. 20191.,20191.
• Citation: 169 S.W.2d 102
• Parties: RAINES v. SMALL et al.
• Court: Missouri Court of Appeals

169 S.W.2d 102

RAINES v. SMALL et al.

No. 20191.

Kansas City Court of Appeals. Missouri.

February 1, 1943.

Rehearing Denied March 1, 1943.

Appeal from Circuit Court, Jackson County; Paul A. Buzard, Judge.

"Not to be published in State Reports".

Action by Evelyn Raines against John Small and Phillip Small, doing business under the firm name and style of Parkview Pharmacy, for damages caused by application of prescription compounded by defendants. From an order granting the defendants a new trial after verdict for plaintiff for $3,000, the plaintiff appeals.

Affirmed.

C. A. Randolph, of Kansas City, for appellant.

Harry I. Schwimmer and Robert B. Vaughan, both of Kansas City, for respondents.

SPERRY, Commissioner.

Evelyn Raines, sued John and Phillip Small, doing business under the firm name of Parkview Pharmacy. The suit was for damages caused by plaintiff having been burned severely about her neck, shoulders, arms, and body when she applied a lotion, prepared by defendants, which said lotion contained some 20% of phenol (carbolic acid) instead of the 1% prescribed. Trial to a jury resulted in a verdict for plaintiff in the sum of $3,000. Defendants filed motion for new trial but said motion was not acted on by the court during the term when the trial was had and the verdict returned, nor in the succeeding term, but was sustained thereafter. Plaintiff prosecutes this appeal.

In granting the motion for new trial, the court made the following order:

"The court sustains defendants' motion for new trial for the following reasons:

"(1) The court erred in refusing to discharge the jury on account of the rebuttal testimony of Lyle B. Raines.

"(2) The court erred in overruling the defendants' motion to discharge the jury because of arguments of plaintiff's counsel was prejudicial and inflammatory."

Both grounds above set out were included in the motion for new trial filed by defendants. We will first consider No. 2 of the above given reasons.

Plaintiff pleaded that she was seriously injured because of the application by her of a medicine to exterior portions of her body, said medicine having been prepared by defendants under a prescription given plaintiff by her physician; and that defendants so negligently compounded said prescription that the medicine contained "dangerous, harmful and poisonous drugs in greater quantities than called for by said prescription." Defendants filed a general denial.

Evidence offered by plaintiff tended to prove that she developed food rash; that she went to the office of a Dr. Day, who gave her a prescription calling for a preparation of calamine lotion containing sulphur and 1% of phenol; that she delivered said prescription to defendants and that they prepared said lotion for her; that the lotion was applied on her body and over the affected parts thereof with beneficial results; that she sought and obtained from defendants a refill of said prescription, which refill was satisfactory; that, on November 8, 1939, she again had the prescription filled by defendants; that when the last preparation was applied she was severely burned on the neck, shoulders, arms, breasts and back; that said last mentioned preparation, as delivered to and used by her, contained more than 20% of phenol by analysis; that the excessive quantity of phenol caused her to be burned, blistered, and scarred and caused her to be ill and nervous.

Direct and rebuttal testimony offered by her also tended to prove that her husband called the office of Dr. Day on November 8, 1939, the day she was injured, but that the doctor was not in his office and that his nurse, then on duty, gave instructions for immediate relief of plaintiff's pain and suffering; that plaintiff visited the office of Dr. Day on November 9 and was seen and examined by him; that immediately when he saw her he told her that he had heard about her accident; that he examined her burned condition and told her that he didn't know what could have caused it; that he told her that the prescription called for but 1% of phenol which, he said, would not cause burns and would scarcely give her a "tingle"; that he said that the lotion must have contained more than 5% of phenol and he didn't know how much it did contain in order for her to be burned that severely; that he gave her a tube of Unguentine and told her to use it.

Dr. Day was subpoenaed as a witness by defendants and testified that plaintiff had no burns when he saw her on November 9; that he had no knowledge or information to the effect that she had been burned; that he made no comment concerning the phenol content of the lotion because she was not burned and did not claim to have been burned; that he gave her a light ray treatment which, he testified, he would not have done if she had been burned; that he did not give her a tube of unguentine and had no unguentine in his office and never recommended its use for burns; and that, in his judgment, plaintiff was suffering from psoriasis, not food rash, and that he, on November 9, gave her a prescription for chrysarobin ointment, a medicine highly improper for use on a burned surface but the accepted remedy for psoriasis; and that plaintiff's burned condition was, in his judgment, not due to phenol but to chrysarobin ointment used by plaintiff on witness' prescription. In answer to questions propounded on cross-examination he testified that he was in court as a witness because he had been subpoenaed, not because he had voluntarily appeared, and that his nurse, who was in the court room during two days while the trial progressed, was also there under subpoenae.

During the course of the argument to the jury by counsel for plaintiff, the following appears of record:

"* * * but before going into that, I want to call your attention while we are talking about this nurse; the Doctor testified here on the stand that he and the nurse were both under subpoena and were here in the court room day before yesterday and again yesterday, but the defendants did not put the nurse on the stand. Why didn't they? Why didn't they put the nurse on the stand?

"Mr. Schwimmer: Now, if Your Honor please, that is improper argument. This nurse was just as available to Mr. Randolph as she was to the defendants in this case and he could have put her on the stand as well as the defendants and I object to Mr. Randolph's statement.

"The Court: Objection overruled. The evidence is that she was subpoenaed by the defendants.

"Mr. Schwimmer: There was no evidence that she was subpoenaed by the defendants. I do not know who subpoenaed her.

"The Court: There was evidence that she was subpoenaed?

"Mr. Schwimmer: Yes; but I don't know who subpoenaed her. Maybe he subpoenaed her.

"The Court: Oh, you gentlemen know who subpoenaed her.

"Mr. Randolph: Why, he knows he subpoenaed her and the Doctor so testified.

"Mr. Schwimmer: How do you know that? That is not so. I did not subpoena her and she was available to you as she was to me, sir, and you could have put her on the stand.

"The Court: There is evidence here that the witness was subpoenaed.

"Mr. Randolph: That is right. The Doctor so testified.

"The Court: Well, the jury will have to depend on their recollection of the testimony as to that.

"Mr. Randolph: I think you gentlemen have a pretty good idea just why she was not put on the stand. I will tell you why she was not put on the stand, and I will tell you from the evidence that came from the months of the witnesses in this lawsuit —

"Mr. Schwimmer: I move for a discharge of the jury on account of the improper remarks of the counsel.

"The Court: Overruled.

"To which ruling and action of the Court the defendants at the time duly excepted and still except.

"Mr....