Smith's Admx. v. Middleton

• Decision Date: 31 January 1902
• Citation: 112 Ky. 588
• Parties: Smith's Admx. v. Middleton.
• Court: Kentucky Court of Appeals

Page 588

112 Ky. 588

Smith's Admx. v. Middleton.

Court of Appeals of Kentucky.

January 31, 1902.

APPEAL FROM SHELBY CIRCUIT COURT.

JUDGMENT FOR PLAINTIFF FOR ONLY PART OF WHAT SHE CLAIMS AND SHE APPEALS. REVERSED.

BEARD & MARSHALL, FOR APPELLANT.

COPYRIGHT MATERIAL OMITTED

WILLIS & WILLIS, ATTORNEYS FOR APPELLANTS.

J. C. BECKHAM & SON, FOR APPELLEE.

G. G. GILBERT, FOR APPELLEE.

OPINION OF THE COURT BY JUDGE O'REAR — REVERSING.

Appellee was a druggist at Shelbyville. He had besides himself, in charge of his store, a licensed pharmacist, and two other salesmen who were not licensed pharmacists. Charles Earl Smith was an infant aged about four years. His mother and her sister called at appellee's drug store with an ordinary pill box bearing a label, besides the druggist's name, as follows: "1/4 grain calomel." They handed this box to one of appellee's clerks, — one who was not a pharmacist, — and asked him to furnish in the box 25 cents worth of calomel in one-fourth grain tablets, which he undertook to do. They also made other purchases, including having a prescription refilled. They returned to the drugstore shortly afterwards, and were delivered their packages by a clerk, which they carried to their homes. The statement of the women is that they kept on hand a supply of calomel in this form for use as occasion might seem to require. Mrs. Smith had three little children, Charles Earl being the second. He was complaining of a cold, and as a remedy she sought to administer what she believed was calomel, being some of the pellets contained in the box referred to. She did give him three of these pellets, — one at the end of each hour for three hours. It subsequently developed that, instead of calomel, the box contained morphine. The result was the death of the child. His administratrix has brought this suit against the druggist for the negligent destruction of the child's life, alleging that the mistake by which the clerk furnished morphine instead of calomel, and putting it in a box labeled, "Calomel ¼ grain," was gross negligence of such a degree as entitled the plaintiff to recover punitive damages. The jury found for the plaintiff a nominal sum, and she appeals, presenting three grounds for the consideration of this court, upon which she asks a reversal.

1. The defendant (appellee) was permitted to prove on the trial that the clerk who furnished the medicine, and who, by the way, claimed he did not furnish morphine, but did calomel, was a careful, sober, painstaking man. This evidence was objected to. It had not been attempted, for the plaintiff, to prove that the clerk was either generally careless, inattentive, or dissipated. Therefore the question was not whether generally and ordinarily the clerk was as suggested by the evidence, but whether upon the occasion under inquiry he was careful or negligent. In our opinion, it ought not to affect this case in the least however careful and attentive the clerk was ordinarily, if on this particular occasion he was negligent or grossly negligent. The sole question to be submitted to the jury on that point was whether the clerk did furnish morphine on this prescription instead of calomel, and whether such an act was, or not, grossly negligent. We are of opinion that the testimony discussed above should have been excluded, and the inquiry confined to the particular transaction, — as to whether it was or not negligent.

2. On the trial of the case the court refused to submit to the jury the question of punitive damages. Whether this was upon the theory that the master, when a natural person, is not liable to punitive damages, because of the gross neglect of his servant when upon the master's business and in the line of his employment, where care has been used by the master in the selection of the servant, or whether it was upon the idea that there was no evidence of gross neglect shown in this case, we are not informed. The court is of the opinion that to put in charge of a business of this kind one with authority to dispense such poisonous and dangerous drugs as morphine (it was shown in this case that these unlicensed clerks were authorized to sell this drug), where such one gave such a deadly drug to one calling for calomel, placing it in a box labeled, "Calomel ¼ grain," without notice of the true nature of the drug furnished, was of itself such evidence of that degree of gross negligence that would warrant a jury in finding punitive damages against such wrongdoer. It is not suggested, nor can we apprehend that it is in any wise probable, that the act of furnishing the wrong drug...