Spry v. Kiser

• Decision Date: 07 April 1920
• Docket Number: 360.
• Citation: 102 S.E. 708,179 N.C. 417
• Parties: SPRY v. KISER ET AL.
• Court: North Carolina Supreme Court

102 S.E. 708

179 N.C. 417

SPRY v. KISER ET AL.

No. 360.

Supreme Court of North Carolina

April 7, 1920

Appeal from Superior Court, Forsyth County; McElroy, Judge.

Action by D. W. Spry, Sr., administrator of D. W. Spry, Jr., against E. L. Kiser and others, trading as E. L. Kiser & Co. Judgment for defendants, and plaintiff appeals. Error.

In an action against a druggist for death of a baby, evidence that the defendant negligently sold rancid sweet oil to the plaintiff for the child, and that it caused its death, held to render a nonsuit upon the evidence erroneous.

Plaintiff alleged that his intestate's death was caused by the negligence of the defendants in selling him rancid and unwholesome oil to be administered to the intestate during his last illness.

J. W Newsome testified substantially: He is the maternal grandfather of the child; had taken it into his household when it was but a few months old to be nursed and reared, its mother, who was plaintiff's daughter, having died at its birth. The child became ill, and its physician prescribed the use of sweet oil in stated doses. This oil, which they had on hand, seemed to work well, and plaintiff went to the defendant's drug store to get more oil and called for sweet oil. He was handed a bottle for which he paid, and after it was given to the child the latter became suddenly very ill during the night, and continued so until morning having had 26 evacuations of the bowels, and did not recover but languished and died about 12 days afterwards. The child constantly retched and tried to vomit. He was quite sick the next morning, but was more quiet late in the evening, and the doctor advised that another dose of sweet oil be given, and plaintiff gave the child another dose from the same bottle. When the doctor came the second time, plaintiff asked him to smell the bottle, which he did, and said, "That is stale, rancid, and out of date; I know what to fight now that is the cause of it." He asked for whisky, and brandy was brought to him, and he said, "That will not do in this case." Whisky was then given to the child. The doctor then told the witness to take the bottle of rancid oil back and tell Mr. Griffin "to send a bottle of pure sweet oil--that is, olive oil." "I told him I wanted olive oil. He then said to me that he knew that was cotton seed oil when I bought from him before." The witness replied, "The doctor says that is what is the cause of the child's sickness, and if that kills the baby Mr. Spry is going to law you." Griffin then said "He can't hurt us, as we did not make it." Witness then said to him, "Mr. Griffin, suppose the state chemist comes around here and finds it, what would you say?" Griffin replied, "I would say we kept it to grease automobiles," and witness said, "Yes; and to kill babies." Dr. Flynt, the attending physician, stated that "the child was as well developed as any he had ever handled; his pulse never had varied one item." He said this about one hour before the child died. The witness J. W. Newsome testified further:

"He was taken sick on the night of the 18th of July, 1916. We had been giving him sweet oil twice a week up until this time; gave it to him Tuesday night and Friday night; that was simply to make him sleep well and keep his bowels open; he had shown no signs of sickness to this time. After the supply of sweet oil that they brought to the house with the baby gave out I bought sweet oil from E. L. Kiser; I bought five cents worth at the time so it would not get old. On the 18th of July I applied to E. L. Kiser & Co. for a bottle of sweet oil. I thought they were out of oil on the evening of July 18th, and I went to the store and asked Mr. Francis Kiger if he had any more of that sweet oil. Francis Kiger was a clerk in E. L. Kiser's store, and had been for something like a year. He said he had no more five-cent packages, but had plenty of ten-cent packages. I said, 'That's all right, if it is pure and all right.' He said, 'It is pure sweet oil; I will guarantee it.' I bought it. The bottle shown me is what I bought from him on that occasion. I carried it on home and gave the child not quite a teaspoonful like I had been giving him. That was 9 o'clock, and I took the little fellow and went to bed, and I always took a bottle of milk and my wife a bottle, and at 11 o'clock he had vomited all over the bed and was looking for the bottle. I nursed him to the bottle, and he went off to sleep again, and about 1 o'clock he woke me again hunting for his bottle. I nursed him again, and he had vomited again and discharged all over the bed, and I woke up my wife at 1 o'clock on the morning of the 19th, and from then to day he had 26 actions and vomited continually until the doctor got there. I didn't notice anything else in his condition at that time. His bowels kept moving all night as fast as we could attend to him until the doctor got there. In a day or two after that his mouth turned red like he had been eating pickled beets, and that lasted about a day and night, and then commenced coming a white scum in his mouth that lasted a day or two and that went away, but he never did stop his vomiting. * * *

The baby had full front teeth, four above and four below, at four months old, and the doctor said he never heard of that or read of that before. We had four different doctors with the child; I told them to spare no expense or money, because I wanted to save the baby. The baby grew worse all the time, heaving and trying to vomit, and discharging. His mouth had peeled off; about the fourth or fifth day his mouth peeled off that white scum, and then there was running water from his mouth all the time, like a child slobbering. That kept up steady until he died, and when he died he was perfectly black all around his abdomen and his lips. I went up to Rural Hall the evening after the child was buried. Mr. Kiser, a member of the firm of E. L. Kiser & Co., spoke to me and said, 'D. W. is dead?' I said 'Yes.' He said, 'Well, poor little sickly thing, he could never be raised nohow.' I said, 'Don't talk that; ask Dr. Flynt.' Dr. Flynt was present, and he cleared up his throat and said, 'You are mistaken, Mr. Kiser; that was the best-developed baby I ever handled, and I have handled quite a few'--something along that line. * * *

Dr. Spears came to my house one Sunday and asked me to let him go through the analysis of that oil. He read the analysis, and he said, 'God damn it, no wonder the baby died.' My wife heard him say that. I never told him I was going to bring suit; I might have told him Mr. Spry might bring suit."

Other physicians were called in to see the child, but failed to stop the progress of the illness which resulted in its death on August 1, 1916, when it was 6 months and 18 days old, having been born on January 13, 1916. There was evidence that the child had been nourished with Horlick's malted milk and perhaps other food, and had been stimulated with small doses of whisky. He had been in good health and was a vigorous child until given the rancid oil, which almost immediately made him sick in the manner described.

Mrs. Tesh testified as follows:

"I was living in Winston in 1916. I remember the death of Mrs. D. W. Spry, formerly Miss Nannie Newsome. I lived just about half a block from her. About three or four weeks after she died I took the baby. Mrs. Brewer had charge of the baby before I got it. He was nearly three months old when I carried him to his grandfather's, who lived at Rural Hall then. The baby was a little sick when I first took him. I thought he was hungry. I didn't have any doctor with him. I fed him little more than he had been getting, and he got along just fine. He never was sick at all while he was with me. He was a normal,

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