Scherer v. Schlaberg

Decision Date30 September 1909
Citation122 N.W. 1000,18 N.D. 421
CourtNorth Dakota Supreme Court

Appeal from District Court, Grand Forks county; Templeton, J.

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


Skulason & Burtness, for appellant.

Contributory negligence of a parent, although a beneficiary, not a defense. Norfolk Railroad Co. v. Groseclose, 88 Va 267, 29 Am. St. Rep. 718; Wymore v. Mahaska County, 43 N.W 264.

Negligence of one member of a family not attributable to another.

Cleveland Columbus and Cincinnati Ry. Co. v. Crawford, 24 Ohio St. 631, 15 Am. Rep. 633; Davis v. Guarnieri, 45 Ohio St. 470, 15 N.E. 350, 4 Am. St. Rep. 548; Wolf Admr. v. Lake Erie & W. R. Co., 55 Ohio St. 517, 45 N.E. 708, 36 L. R. A. 812; Donk Coal Co. v. Leavitt, 109 Ill.App. 385; Atlanta & Charlotte Air Line Ry. Co. v. Gravitt, 93 Ga. 369, 20 S.E. 550, 26 L. R. A. 553; Louisville N. A. & C. Ry. Co. v. Creek, 29 N.E. 481; Town of Knightstown v. Musgrove, 18 N.E. 452.

If from the facts different conclusions may be drawn by fair and impartial men, the case is one for the jury. Mares v. N. P. R. Co., 3 Dak. 336, 21 N.W. 5; Id., 123 U.S. 710, 8 S.Ct. 321, 31 L.Ed. 296; Heckman v. Evenson, 7 N.D. 173, 73 N.W. 427; Cameron v. Ry. Co., 8 N.D. 124, 77 N.W. 1016; Owen v. Cook et al., 9 N.D. 134, 81 N.W. 285, 47 L. R. A. 646; McKeever v. Homestake Mining Co., 10 S.D. 599, 74 N.W. 1053; Bohl v. City of Dell Rapids, 15 S.D. 619. 91 N.W. 315; Pyke v. City of Jamestown (N.D.) 107 N.W. 359; Sarja v. G. N. Ry. Co., 109 N.W. 600; McTavish v. G. N. Ry. Co., 8 N.D. 333; Herbert v. N. P. Ry. Co., 3 Dak. 38; Williams v. N. P. Ry. Co., 3 Dak. 168.

Bangs, Cooley & Hamilton, for respondent.

Contributory negligence of the beneficiary is a complete defense. Vinette v. Nor. P. Ry. Co. 91 P. 975; Westbrook v. Mobile & Ohio R. Co. 66 Miss. 560; 14 Am. St. 587; Lindsay v. Railway Co. 35 A. 513; Ploof v. Burlington Traction Co. 41 A. 1017; Wolf v. Lake Erie & W. R. R. Co. 36 L. R. A. 812; Woodward v. Chicago & N.W. R. Co. 23 Wis. 400; Chicago City Ry. Co. v. Wilcox, 27 N.E. 899. Ill. Cent. Ry. Co. v. Warriner, 82 N.E. 246; City of Pekin v. McMahon, 154 Ill. 141; 45 Am. St. 114; Apsey v. Detroit, L. & N. R. Co. 47 N.W. 319. Indianapolis St. Ry. Co. v. Antrobus, 71 N.E. 971; Spokane & Pacific Ry. Co. v. Holt, 40 P. 56; Tucker v. Draper, 86 N.W. 917; Mills' Adm'r v. Cavanaugh, 94 S.W. 651.

Where the evidence connecting the infant's death with the negligence of defendant is purely speculative, there is no question for the jury. Koslowski v. Thayer et al, 68 N.W. 973; Moore v. Gt. Nor. Ry. Co. 69 N.W. 1103; Peterson v. C. M. & St. P. Ry. Co. 102 N.W. 595; Traux v. M. St. P. & S. M. Ry. Co., 94 N.W. 440; Wadsworth v. Boston El. Ry. Co., 66 N.E. 421; Baltimore & O. R. Co. v. State, 61 A. 189. 192. Standard Oil Co. v. Murray, 116 F. 572, 576; Balding v. Andrews, 12 N.D. 267, 96 N.W. 305; Meehan v. Gt. Nor. R. Co., 13 N.D. 432, 101 N.W. 183; Atchison T. & S. F. R. Co. v. Aderhold, 49 P. 83; Sherman v. Lumber Co., 45 N.W. 1079, Searles v. Manhattan Ry. Co. 5 N.E. 66; Laidlaw v. Sage, 52 N.E. 679. 689; Bond v. Smith et al., 21 N.E. 128; Cole v. German S. & L. Soc. 124 F. 113; Stratton v. Nichols L. Co. 81 P. 831. Wheelon v. C. M. & St. P. R. Co., 52 N.W. 119.

There being no proof of father's age or other condition; nor of the three months child's mental or physical condition or characteristics, there was nothing for the jury to use as a measure of its aid to the father had it lived Regan v. C. M. & St. P. Ry. Co., 8 N.W. 522; Cooper v. Railway Co., 33 N.W. 306; Atrops v. Costello 35 P. 620; Houghkirk v. President et. 92 N.Y. 223; Gunderson v. N.W. El. Co., 49 N.W. 694; Atchison T. & S. F. Ry Co. v. Fajardo, 86 P. 300; Walker v. L. S. & M. S. Ry. Co., 62 N.W. 1032; Potter Adm'r v. C. & N.W. Ry. Co., 21 Wis. 377.

SPALDING, J. FISK, J., disqualified, and C. A. POLLOCK, Judge of the Third Judicial District sat in his stead. CARMODY, J., and POLLOCK, District Judge, concurring, MORGAN, C. J. concurs in the result ELLSWORTH, J. (dissenting).



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...

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