Thamann v. Merritt
| Decision Date | 13 February 1924 |
| Docket Number | No. 22998.,22998. |
| Citation | 197 N.W. 413,111 Neb. 639 |
| Parties | THAMANN ET AL. v. MERRITT ET AL. |
| Court | Nebraska Supreme Court |
Under section 27, ch. 187, Laws 1917, it is unlawful for a licensed pharmacist to sell any alcoholic compound, preparation, or remedy, which contains sufficient alcohol to make it intoxicating, unless it has been so medicated with drugs as to render it unfit for use as a beverage.
The fact that an alcoholic compound or preparation may be drunk in sufficient quantities to produce death does not, of itself, establish that such compound or preparation is “unfit for use as a beverage,” within the meaning of section 27, ch. 187, Laws 1917.
Under the civil damage sections of chapter 187, Laws 1917, a licensed pharmacist is not liable in damages arising from the use of an alcoholic compound or preparation, sold by him, unless such sale was made in violation of law.
Whether essence of wintergreen, an alcoholic compound or preparation, is unfit for use as a beverage is a question of fact, to be determined from the evidence.
Appeal from District Court, Douglas County; Day, Judge.
Action by Eva Thamann, individually and as next friend of Geneva Thamann and others, against John Merritt and the Sherman-McConnell Drug Company and others, revived in the names of Harriet Sherman Bannister and another, executrices of the estate of Charles R. Sherman, deceased. From a judgment for plaintiffs, the defendants last named appeal. Reversed and remanded.Stout, Rose, Wells & Martin, of Omaha, for appellants.
Murphy & Winters, of South Omaha, for appellees.
Action under civil damage sections of the Nebraska Prohibition Act of 1917 (Laws 1917, c. 187). From a judgment for plaintiff, the defendants, Sherman-McConnell Drug Company and Charles R. Sherman, have appealed. This is the second appearance of this case in this court. The former opinion appears in 107 Neb. 602, 186 N. W. 1003. The action was originally begun against Merritt et al., but, since the first trial, has been dismissed as to all defendants except the Sherman-McConnell Drug Company (hereinafter called the drug company) and Charles R. Sherman. The drug company, as a licensed pharmacist, operates five drug stores in the city of Omaha, and Charles R. Sherman is surety on the bond of the drug company for each of its stores.
Plaintiff brought this action on behalf of herself and minor children, to recover for loss of support, occasioned by the death of her husband, John Thamann. It is alleged in the petition that between the 24th and 30th days of December, 1917, John Thamann purchased of the drug company at its stores in Omaha essence of wintergreen, an intoxicating liquor, which he drank and which caused his death on December, 31, 1917; that said intoxicating liquors, so sold to the deceased, were not so medicated as to be unfit for use as a beverage, and consisted of approximately 5 to 10 per cent. of essence of wintergreen and 90 to 95 per cent. of alcohol. The defendant drug company admitted that it was a duly licensed pharmacist, and it was admitted that the defendant Sherman was surety on the bond of the drug company, and in their answer defendants alleged that the drug company was authorized to sell and keep for sale alcohol, under section 17, ch. 187, Laws 1917; and denied that they had sold any alcoholic compound, preparation, or remedy, except in strict compliance with section 27 of the Prohibition Act of 1917.
Defendants contend that the trial court erred in the whole theory of the law applicable to the facts. They argue that under the Food and Drugs Act of Nebraska it was lawful for defendant drug company to sell any medical compound or preparation that is recognized in the United States Pharmacopœia or National Formulary, and that is prepared according to the formula laid down in either of these works, regardless of the fact that it may be intoxicating, unless such compound or preparation is sold for a beverage. They contend, further, that the National Formulary contains a formula for the preparation of essence of wintergreen, and argues that therefore there can be no liability in this case unless the essence of wintergreen was sold to Thamann as a beverage.
[1] We think this argument is not sound. In the first place, neither the United States Pharmacopœia nor the National Formulary lists essence of wintergreen as a medical compound or preparation. It is true that the National Formulary contains the following formula:
“Any spirit of a volatile oil, for which no formula is provided, may be prepared by the following general formula: The volatile oil, 65 milliliters, alcohol, 935 milliliters.”
However, this by no means goes to the extent of recognizing essence of wintergreen, which is composed of oil of wintergreen and alcohol, as a medicinal preparation or compound. But, even if it was recognized in the United States Pharmacopœia or National Formulary as a medical preparation or compound, if it was fit for use as a beverage, we think it would be prohibited. Section 27, ch. 187, Laws 1917, which was in force at the time of the sale of the essence of wintergreen to Thamann, authorized the sale of alcoholic compounds, preparations, or remedies, containing drugs or medicines, which do not contain more alcohol than is necessary for the legitimate purpose of extraction, solution, or preservation, and which contain drugs in sufficient quantities to so medicate such compounds, preparations or remedies as to make them...
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