Scherer v. Schlaberg

• Decision Date: 30 September 1909
• Parties: SCHERER v. SCHLABERG et al.
• Court: North Dakota Supreme Court

18 N.D. 421

122 N.W. 1000

SCHERER

v.SCHLABERG et al.

Supreme Court of North Dakota.

Sept. 30, 1909.

Syllabus by the Court.

In an action by a father for the death of a minor child by wrongful act of defendant, the measure of damages recoverable by the father is the probable value of the services of the child during minority to the father, considering the cost of support and maintenance during the early and helpless part of its life.

In an action by a father for damages for the wrongful death of a daughter three months old, who is dangerously ill with uremia when the wrongful act complained of was committed, the question of the pecuniary injury of the father by the death of such child, if caused by the wrongful act of defendants, is purely a matter of speculation, conjecture, and guesswork, and any verdict for more than nominal damages in favor of the father would necessarily be based upon conjecture or speculation.

The child, damages for whose death by wrongful act of defendants are sought in this action by the father, was a girl three months old, dangerously ill with uremia. A physician was called, and left with the parents a prescription on defendant's drug store for medicine. By mistake of the defendant druggists medicine was given plaintiff containing one-eighth of a grain of morphine in each dose directed to be given. The infant afterward died. Held, under the evidence, that the jury, had the case been submitted to it for a verdict, could only have found a verdict for plaintiff based upon pure speculation and surmise as to the cause of the child's death.

When the nature of the evidence, in an action for damages, is such that no verdict for the plaintiff can be returned except based upon mere conjecture, surmise, or speculation, it is proper for the trial court to direct a verdict for the defendant.

In an action under the statute providing for the recovery of damages for death by wrongful act of the defendant, the contributory negligence of the plaintiff beneficiary is a defense.

The prescription of an attending physician called for medicine in the form of a powder, to be given, one every three hours, to an infant three months old. The prescription was left with the mother of the child, and she was informed by the physician that it would be in powder form, and to give a dose once in three hours. By mistake of the defendant druggist medicine, put up for another customer, in liquid form, the label on the bottle being marked with the name of the party for whom it was prescribed, and containing directions to give one teaspoonful every two hours until relieved, was delivered. The plaintiff father was not present when the information and the directions were given the mother by the doctor, but before any of the medicine was given was informed by the mother what the directions were. He also read the directions on the bottle, and knew that the prescription given had been for a powder. He was present when the liquid was administered to the child, and permitted it to be done. After the first dose was given, and when nearly time for the second dose to be administered, he suspected something wrong in the medicine, and telephoned the doctor from the residence of a neighbor. He left his home to telephone without imparting his suspicions to his wife, or directing her to delay the second dose until he had heard from the doctor, and the second dose was given before his return. Held, that under these facts, and others disclosed by the record, the plaintiff was guilty of contributory negligence in law.

Appeal from District Court, Grand Forks County; Templeton, Judge.

Action by Jacob Scherer, as administrator of the estate of Frances Scherer, against Frank Schlaberg and Frank L. Griffin, copartners as Schlaberg & Griffin. Judgment for defendants, and plaintiff appeals. Affirmed.

Ellsworth, J., dissenting.

Skulason & Burtness, for appellant. Bangs, Cooley & Hamilton, for respondents.

SPALDING, J.

The plaintiff, Jacob Scherer, and his wife, Anna Scherer, were on March 20, 1906, the parents of a female child named Frances one day less than three months old. As far as shown by the evidence the child was healthful up to the time of the illness hereinafter described. On Sunday, March 18, 1906, this daughter became unwell. Tuesday morning, the 20th, Dr. Taylor was called, and gave directions for the treatment of the child. He called again in the afternoon, and gave Mrs. Scherer a prescription on the drug store of the defendants. The doctor told the mother to send the prescription to the drug store, and that the medicine it called for would be in the form of powders, and to give one powder to the child every three hours. The husband was not present when these directions were given. The prescription was sent to the drug store about 5 o'clock by Stella Brady, who gave it to one of the druggists in the store, and received in return a claim check. She left the drug store, and on her return in a short time the same person to whom she gave the prescription delivered to her the medicine. She carried it to the plaintiff's residence, and was directed by the mother to place it on a writing desk, which she did. It was allowed to remain there until the return of the father about 6:30 p. m., when he and the mother examined it, and commented on its being in a bottle and a liquid, instead of in powders, as the doctor had stated it would be. The mother told the plaintiff that the doctor said it would be in powders, and his directions. She could not read English. The plaintiff could. He read the label on the bottle and the directions. The name of some person was written on the label. He testifies that he could read the name “Rose,” but that the other name was blurred, and could not be read; that he thought that was the name of the medicine. In fact the name “Rose Clark” was distinctly written on the label before the directions. The directions which he read were to give one teaspoonful every two hours until relieved. The liquid in the bottle contained two grains of morphine, or about one-eighth of a grain to a teaspoonful. After discussing the difference between the medicine received and the statement of the doctor, plaintiff and wife, notwithstanding the lack of opportunity for the doctor to change the prescription, concluded that the doctor had changed his mind and put up a liquid. The father did not administer the medicine, but was present when the mother, with the assistance of another lady, did administer it. On attempting to give it undiluted, the child appeared to dislike it and suffer from the contact of the medicine with her mouth; and, although the directions said nothing about diluting, the mother reduced it with water and administered about a teaspoonful. Fifteen or 20 minutes after it was given the child appeared to suffer, and, without entering into details of the testimony of the different witnesses, it suffices to say that the child was evidently in distress. The father waited until a few minutes before time for the second dose, when, suspecting that the changed condition of the child for the worse was caused by a mistake in the medicine, he went to a neighbor's about two blocks away and telephoned the doctor. He left without indicating to the mother his suspicion regarding the medicine, or cautioning her about giving another dose before he had communicated with the doctor. The doctor informed him that it was the wrong medicine. He returned in haste to his home and found that the second dose had just been given. The doctor arrived shortly, examined the child, and found a slight dilation of the pupils of the eyes. He testifies to no other symptom of morphine poisoning. The testimony of the different physicians indicates that if the digestive organs were in normal condition, the morphine would have been absorbed into the system in a few minutes, but that when the digestive system is out of order morphine may remain a considerable time in the stomach. The doctor washed out the stomach with permanganate of potash, for the purpose of relieving it from any morphine which it retained. He testifies that the effect of a solution of permanganate of potash used in this manner is to decompose and render morphine inert and absolutely harmless. He also gave the child a hypodermic of atropine to counteract the effect of any morphine which might have been absorbed. This was done about 9 o'clock in the evening. He remained with the child until about 1 o'clock in the morning, and testifies that he made use of tests to determine whether there were any remaining effects of the morphine present, and that it is his positive judgment that when he left the child was free from any ill effect which she might have had from the morphine. She was lying perfectly still when he left, but the parents testified that she subsequently had several convulsions. The doctor called again the next forenoon, and found it still a very sick child, and it died about noon Wednesday. This action was brought under the provisions of the statute giving the father the right to maintain an action for death of his child by wrongful act, and it is for his benefit, he being the sole heir at law.

At the close of the case the defendants moved for the direction of a verdict in their favor on the following grounds: (1) That the evidence fails to show that the infant Frances Scherer died from the effects of administering the liquid called for by the prescription Exhibit C; (2) that the evidence fails to show that the defendants, or their agents, were guilty of any act which, or the result of which, was the proximate cause of the death of the infant, Frances Scherer; (3) that there is no evidence in the case upon which the jury can base a deliberate judgment that the death of the infant, Frances Scherer, was caused by the administering of the liquid called for by Exhibit C; that such verdict, if rendered, would be necessarily based on mere surmise, conjecture, and...