Walker v. Chase

• Decision Date: 14 November 1922
• Docket Number: 34457
• Citation: 190 N.W. 397,194 Iowa 796
• Parties: CARL M. WALKER, Administrator, Appellee, v. W. B. CHASE, Appellant
• Court: Iowa Supreme Court

190 N.W. 397

194 Iowa 796

CARL M. WALKER, Administrator, Appellee, v. W. B. CHASE, Appellant

No. 34457

Supreme Court of Iowa, Des Moines

November 14, 1922

Appeal from Jasper District Court.--CHARLES A. DEWEY, Judge.

ACTION for damages by an administrator for alleged wrongful death of his intestate, caused by the negligence of the defendant. The answer was a general denial. There was a verdict and judgment for the plaintiff for $ 3,500. The defendant appeals.--Reversed.

Reversed and remanded.

Dutcher & Hambrecht, for appellant.

M. J Carey and R. R. Mowry, for appellee.

EVANS J. STEVENS, C. J., ARTHUR and FAVILLE, JJ., concur.

OPINION

EVANS, J.

The decedent, Louise Walker, was a child 18 months of age. She lost her life on April 5, 1919, as a result of eating certain pills or tablets which had been prescribed for an adult person. The plaintiff was her father, and is her duly appointed administrator. The defendant was a regular practicing physician, who was called to visit the aunt of the decedent. He prescribed certain tablets for the patient, who was adult, and left 12 or 15 of such tablets with the patient and her attendants, with directions that the patient take one every four hours. This was on April 4th. On the following day, the decedent, without the knowledge of her parents, got the custody of the tablets and ate them all save two, and her death resulted therefrom. This is not a malpractice case. The charge is not that of malpractice, but that the defendant was negligent in having so exposed the tablets that the child could discover them and be attracted thereby, and in that he failed to give warning of the alleged dangerous character of the tablets, in that each contained a small quantity of strychnine. The allegations of the petition on the subject of negligence were as follows:

"That on or about the 4th day of April, 1919, the defendant, while at the home of J. W. Walker in Prairie City Iowa, and while attending Laura Walker as her physician, placed some tablets containing poison in a teacup on a table, without labeling the same or giving any caution as to their dangerous character. That the defendant well knew that said tablets contained drugs dangerous and harmful to the human system, and knew that plaintiff's intestate was wholly ignorant of their harmful and dangerous character, but negligently and wantonly placed said tablets within the reach of said Louise Walker. That said Louise Walker was present in the room when said tablets were left, as aforesaid, by the defendant, which facts were well known to him. That said tablets were pink in color, and constituted an attractive danger to said Louise Walker, who was then about 17 months of age. That, on or about the 5th day of April, 1919, while said tablets were still in the place in which the defendant left them, said Louise Walker ate a number of the tablets, which caused her to go into convulsions, from which she died within about an hour. That the negligence of the defendant in placing said tablets within the reach of said Louise Walker, without labeling the same or giving any warning or caution as to their poisonous or dangerous character, was the direct and proximate cause of the death of said Louise Walker, who was free from contributory negligence."

The evidence for the plaintiff discloses that the defendant was called about 6 o'clock on April 4th, to visit Laura Walker, aged 22, as patient. He visited her at her home, which was not the home of the decedent. Upon his visit, he found there Kathleen Walker and Miss Williams, who were attending the patient. Kathleen Walker was the sister-in-law of the patient, and mother of the deceased child. The tablets prescribed were by him placed in a china cup, and set upon an ordinary table, 28 inches high, at the bedside of the patient. After directing that one tablet should be given every four hours, the defendant left. Sometime during the evening, the patient was moved from that room into another, where she slept that night. Kathleen Walker slept with her and attended her. The tablets were left in the china cup upon the table in the room occupied by the patient when the defendant visited her. Kathleen Walker gave the patient two of the tablets only. These were given at 7:30 and at 11:30. Their effect seemed to be sufficient so that she refrained from further use of them. At 9:30 o'clock on the next morning, the father of the child discovered her in a chair at the table where the tablets were, and discovered that she had eaten all that were left, save two. Within a half hour, she was taken violently ill, and died within an hour. Each tablet contained one sixtieth of a grain of strychnine. The medical testimony is undisputed that the tablet is one in common use. The medical witness for the plaintiff testified that it would take six or seven of them to cause the death of a child.

The theory of the argument on behalf of the plaintiff is that it was the act of the defendant that put the tablets upon the table, and that they had at all times continued in the place where he put them; that they were pink tablets, and therefore attractive to a child; that he failed to warn the attendants that they were dangerous, or that they contained poison. This is the conduct upon which the charge of negligence is predicated against the defendant. The argument is that in putting the pink tablets in the china cup, and leaving the same upon the table within the possible reach of the child, he exposed her to a danger which he ought to have foreseen, and against which he ought to have guarded. The contention for the defendant is that he was guilty of no negligence in what he did, and that his action in the premises was not, in a legal sense, the proximate cause of the accident to the child. Defendant unsuccessfully moved, at the close of the evidence, for a directed verdict. The more important question now presented for our consideration is, Does the evidence disclose any negligence on the part of the defendant?

In order to get a clear perception of the real nature and extent of the charge of negligence, a process of elimination may be helpful.

The case presented is not one where the defendant owed a special duty to the injured party, and failed to perform that duty. The child was not his patient. She was not under his care, custody, or control.

Neither is the case one where the defendant so gave or delivered to a third person a dangerous substance, with a mutual intent that such person might sell, give, or deliver the same to other persons, at his discretion. The delivery of the tablets by the defendant to Mrs. Walker was for a specific purpose, and for the limited use of a specific person, not the deceased.

Neither is it a...