Riefling v. Juede

• Decision Date: 07 May 1912
• Citation: 147 S.W. 168
• Parties: RIEFLING v. JUEDE et al.
• Court: Missouri Court of Appeals

147 S.W. 168

RIEFLING v. JUEDE et al.

St. Louis Court of Appeals. Missouri.

May 7, 1912.

1. PLEADING (§ 237) — AMENDMENTS — CHANGE OF CAUSE OF ACTION.

In an action against a druggist for negligently compounding a prescription, where the petition alleged that a doctor's prescription was given to the druggist, and the evidence showed that the prescription was oral, an amendment of the petition to conform it to the proof did not change the cause of action, the variance between the proof and the petition being immaterial, even though the allegation of a doctor's prescription be construed as meaning a written prescription.

2. PLEADING (§ 430) — PROOF — FAILURE TO OBJECT.

In an action against a firm of druggists for negligently compounding a prescription, the defendant's failure to object to evidence of an oral prescription was a waiver of the point that evidence was not responsive to the pleading.

3. APPEAL AND ERROR (§ 1032) — PROOF — VARIANCE.

A party's failure to show by affidavit that he was misled by a variance to his prejudice renders the variance immaterial as a matter of law.

4. CONTINUANCE (§ 30)—RIGHT TO CONTINUANCE.

Under Rev. St. 1909, § 1847, providing that in case of an immaterial variance the court may direct the facts to be found according to the evidence or may order an immediate amendment without costs, the denial of a continuance on the ground of the amendment was not improper, where the party seeking the continuance did not show by affidavit in accordance with section 1961 that he was unable by reason of surprise to be ready for trial, the affidavit showing that defendant knew of the variance all the time, and his only objection being that the cause of action was changed.

5. TRIAL (§ 114)—ARGUMENTS OF COUNSEL.

In an action against a firm of druggists for injuries caused plaintiff by their negligence in compounding a prescription, one of the firm admitted his liability. The two partners were represented by separate counsel, and in his argument to the jury counsel for the partner, who had admitted his liability after being called to order for suggesting that the administration of poison was not within the scope of the partnership business, said that they did not plead the baby act and that the plaintiff is entitled to a verdict, and he hoped it would be given him. Held, that this statement was not objectionable as a collusive admission of liability by one of the defendants in the case, but at most merely an admission by one partner that he considered himself liable.

6. TRIAL (§ 131) — ARGUMENT — COUNSEL — OBJECTIONS—SUFFICIENCY.

Where one member of a firm considered a statement by the attorney representing the other member as a collusive admission of partnership liability, he should object on that ground; a general objection being insufficient.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by George Riefling against Richard F. Juede and Francis Hemm, copartners, doing business under the firm name of Hemm & Juede. From a judgment for plaintiff, defendant Juede appeals. Affirmed.

Action to recover damages for personal injuries. The plaintiff had verdict and judgment, and defendant Juede has appealed. It appears from the evidence that on the 1st and 2d days of March, 1908, the defendants Hemm and Juede were partners, carrying on business as retail druggists in the city of St. Louis. In the afternoon of March 1st, plaintiff was attended by his family physician for an unimportant ailment, and the physician prescribed quarter-grain proto iodide of mercury pills to be taken one every three hours. These pills would have been entirely harmless. The physician had no prescription blank with him, so, acting for plaintiff, and by arrangement with the latter, he called at the defendants' drug store and finding defendant Juede there, attending to the firm business, he orally dictated to Juede a prescription for 30 quarter-grain proto iodide of mercury pills and told Juede to prepare them for the plaintiff. Juede took and accepted the oral direction or order and agreed to fill it. The next morning plaintiff called at the drug store, and the defendant Juede delivered to him 30 pills as the pills which the doctor had ordered for the plaintiff. Instead, however, of the pills delivered containing a quarter-grain each of proto iodide of mercury as the doctor had ordered for the plaintiff, and which was harmless, Juede had so negligently compounded them that they each contained a quarter-grain of yellow oxide of mercury, a corrosive poison, destructive of stomach tissue. Plaintiff took two of them as directed, believing that they were what the doctor had ordered. He took no more of them. At this time, though only 25 years of age, he was sales manager for a vehicle and implement concern at a salary of $2,500 per annum, in good health, and having an immense capacity for work. About an hour and a half after taking the second pill, while sitting in his office, he became deathly ill, with a cold sweat, rapid heart beat, and great weakness, vomiting blood. That evening the doctor found him in this condition and with cramps in the stomach and thighs, still vomiting blood. He was put to bed and an antidote administered; the error having been discovered. He was sick in this way about 10 days or 2 weeks and then for a little while he improved; but soon the same symptoms returned in severer form, and he was given morphine, again put to bed, and given a treatment of dieting and bowel cleaning and again got better. The spells of pain and vomiting kept recurring, however, and he seemed getting worse, so, at the doctor's instance, he went to a hospital, and underwent a two weeks' course of rectal feeding, taking no nourishment through the mouth. Again, for a time, he got better, but again and again the paroxysmal attacks of pain and bloody vomiting recurred, and, in the opinion of the doctors (he was attended at length by two and his ailment diagnosed by four), they will continue to recur as long as he lives. The physicians state that as a result of the poison the plaintiff has chronic ulcer of the stomach. From time to time this ulcer heals and forms a scar, but upon any undue activity of the stomach or upon eating some kinds of foods the scar breaks on the edge and forms a new ulcer. This accounts for the alternating periods of apparent health and spells of severe illness. The probabilities are that this process will go on during plaintiff's life. The plaintiff's stomach is permanently impaired. He has suffered loss of weight, appetite, vim, and energy and desire for work, is depressed in spirits, has become irritable and inaccurate, cannot do more than half the work he formerly did, and lost his position in consequence, though he and his brother have since formed a smaller concern of their own; has expended or become obligated for at least $750 in doctors' bills, $200 for hospital expenses, and $86 for medicine.

The statement of plai...