Scott v. Greenville Pharmacy

• Decision Date: 10 June 1948
• Docket Number: 16090.
• Parties: SCOTT v. GREENVILLE PHARMACY, Inc.
• Court: South Carolina Supreme Court

48 S.E.2d 324

212 S.C. 485

SCOTT v. GREENVILLE PHARMACY, Inc.

No. 16090.

Supreme Court of South Carolina

June 10, 1948

Appeal from Common Pleas Circuit Court of Greenville County; J Robert Martin, Jr., Judge.

Action by Minnie Scott, administratrix of the estate of Howard B Scott, deceased, against Greenville Pharmacy Inc., for damages for wrongful death of plaintiff's intestate allegedly caused by sale of barbiturate capsules. From the judgment, plaintiff appeals.

In death action by widow against druggist for failing to label barbiturate tablets and warn husband of habit-forming qualities, thus allegedly causing his suicidal death while mentally depressed, complaint failing to establish that deceased at time of sale was incapable of controlling his own conduct and that unlawful sale of barbiturate brought about suicidal mania as natural and probable consequence thereof resulting in death, was insufficient. Code 1942, §§ 411, 412, 5128-25.

John M. Schofield, of Walhalla, for appellant.

Stephen Nettles, of Greenville, for respondent.

FISHBURNE Justice.

This action was brought to recover of the defendant damages alleged to have been sustained by the plaintiff, in consequence of the defendant having sold barbiturate capsules to her husband, which resulted in his death. The lower Court sustained the demurrer to the complaint, hence, this appeal.

The respondent is a corporation and conducts a drug store in the City of Greenville, South Carolina. The appellant is the widow of the decedent, Howard B. Scott, and the action is brought by her as the qualified administratrix of his estate for wrongful death under Sections 411-412 of the Code.

The complaint alleges in substance: That the latter part of the year 1945, in November or December, Howard B Scott suffered from a cold, which later developed into flu, leaving him in a very nervous condition. To alleviate this condition, he went to the drug store of the Greenville Pharmacy and asked for some drug which would 'ease his nervousness and promote sleep'. In response to his request he was sold barbiturate capsules in a box or container without any label showing the contents thereof; and that periodically thereafter, over a period of about a year preceding his death, the respondent, at his request, continued to sell him the capsules. It is alleged that the sale of the barbiturate capsules without a doctor's prescription is prohibited by the laws of this State (Section 5128-25), and that neither at the time of the original sale or at any time thereafter did the deceased, Howard B. Scott, have a doctor's prescription; nor at any time did respondent in making such sales label the box containing the capsules.

It is further charged that the barbiturate preparation in question is a habit forming drug; that Scott was not advised of its nature, and that as a result of taking the capsules he became habituated to the use of the drug, in consequence of which he deteriorated mentally and physically. While under the influence of the drug, or while suffering from moroseness, caused by its habitual use, Scott committed suicide by hanging. The complaint concludes with the allegation that the capsules were sold to Scott in violation of law and that his death by suicide was the proximate result of the acts of respondent in making the sales to him.

This action, as stated, is brought under Section 411, which reads as follows:

'Whenever the death of a person shall be caused by the wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person or corporation who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, although the death shall have been caused under such circumstances as make the killing in law a felony'.

Of course, if the deceased never had a cause of action, none accrues under the wrongful death statute. The condition that the action be one which could have been maintained by the deceased if death had not ensued has reference to the circumstances attending the injury, and the nature of the wrongful act or omission which is made the basis of the action.

In actions for wrongful death, as in the case of actions for personal injuries generally, it is essential to a recovery of damages that the wrongful act or default of the defendant shall have been the proximate cause of the death resulting therefrom. It is axiomatic that the violation of a statute, while negligence per se, will not support a recovery for damages unless such violation proximately caused or conributed to the injuries complained of. Locklear v. Southeastern Stages, Inc., 193 S.C. 309, 8 S.E.2d 321. Crawford v. Atlantic Coast Line R. Co., 179 S.C. 264, 184 S.E. 569.

Section 5128-25 with which the respondent is charged with having violated in the sale of the barbiturate capsules, provides that any person, firm or corporation selling any of that general class of synthetic drugs, commonly known as barbiturates or their counterparts, except upon the written prescription of a licensed physician, shall be deemed guilty of a misdemeanor. It is further provided that any person dispensing such drugs upon such prescription shall place them in a container with the name and address of the person prescribing them, together with the name and address of the person dispensing them plainly printed or written thereon. Any person, firm or corporation violating these provisions shall be deemed guilty of a misdemeanor. It is likewise made a misdemeanor for any person other than a physician, etc., to possess such synthetic drugs or their compounds, unless such container shall either contain the name and address of the person prescribing it, or the name and address of the person dispensing such drug.

The demurrer raises the issue that the drug habit of Scott, the decedent, was a direct consequence of his own voluntary act in taking the barbiturate capsules, and not the result of the sale of the drug to him. It is, therefore, contended that he had no right of action against the respondent, and consequently his administratrix could have no right of action under Section 411 of the Code. In is argued that the consumption is an act independent of and distinct from the sale, depending entirely upon the free will of the purchaser, and the consumption and not the sale is the proximate cause of any resulting injury. Accordingly, the deceased, by the exercise of ordinary care, might have escaped making himself a drug addict. By not doing so, he was the author of his own death.

The liability, if any, of the respondent depends upon the nature and quality of its act in making the sales. This act takes its legal quality and color, not only from what respondent did in making the sales, but from the presence or absence on the decedent's part of such contributory negligence in his conduct at the time as would bar him had he lived and sued. The presence of such contributory negligence, if it existed, is an essential part of the legal quality of the act, as imposing liability between the decedent and the respondent. It is only where he, had he survived, could have sued, that appellant, if he dies, can sue. The action is statutory and must fall within the statute.

The complaint sets forth that Scott, from time to time during a period of about a year bought barbiturate capsules from respondent in Greenville, and that at the end of such time committed suicide by hanging himself in Reidsville, North Carolina, on November 2, 1946.

It is nowhere specifically alleged that the deceased was incapable of consenting to any one or more of the sales of capsules, or that the respondent had any knowledge that he was incapable or lacked volition in making such purchases. There is nothing to show that he lacked self-control or judgment, or that he appeared to be under the influence of any...