Watkins v. Potts

• Decision Date: 28 March 1929
• Docket Number: 8 Div. 28.
• Citation: 122 So. 416,219 Ala. 427
• Parties: WATKINS v. POTTS.
• Court: Alabama Supreme Court

122 So. 416

219 Ala. 427

WATKINS v. POTTS.

8 Div. 28.

Supreme Court of Alabama

March 28, 1929

Rehearing Denied May 30, 1929.

Appeal from Circuit Court, Limestone County; O. Kyle, Judge.

Action for wrongful death by John T. Watkins against F. M. Potts. From a judgment for defendant, plaintiff appeals. Affirmed.

Lynne &amp Patton, of Athens, for appellant.

Fred Wall and Thos. C. Pettus, both of Athens, for appellee.

THOMAS J.

The assignments of error are considered in the order urged. The suit was by the father for the death of his infant child. Alabama Power Co. v. Stogner, 208 Ala. 666, 95 So 151. The proper pleadings in such case and the question of proximate cause have often been considered by this court, and should not be unnecessarily repeated. There was no error in giving defendant's charge 1. Morgan Hill Paving Co v. Fonville (Ala. Sup.) 119 So. 610; Armstrong v. Montgomery Street Ry. Co., 123 Ala. 233, 26 So. 349; Peck v. Henderson (Ala. Sup.) 118 So. 262; Western Ry. v. Mutch, 97 Ala. 194, 11 So. 894, 21 L. R. A. 316, 38 Am. St. Rep. 179.

The suit grows out of the filling of a prescription by the defendant for plaintiff's baby; it being alleged that defendant furnished poisonous medicine, or delivered the wrong or deleterious medicine for said baby instead of that prescribed. The attending physician, when said baby was born, was the physician who wrote the prescription and delivered it to defendant, according to the undisputed evidence, on Saturday, and the same was not called for until some time Sunday following. According to the testimony of defendant, plaintiff's baby's prescription and that for another were delivered by the physician to the druggist to be filled, and this was done between 11 and 12 o'clock a. m. on Saturday, December 24, 1927, and they were not called for until after the following day. They were delivered to the father of the deceased child, the one for the child and the other to be delivered by the father to an adult in his neighborhood.

The baby of plaintiff was not strong; its skin was blue at birth, and was a sickly child. These were the general statements made by the attending physician of its physical condition, and that the prescription he gave the child called for a sedative to produce sleep. According to the testimony of all the physicians (Mayhall, Hagan, Pettus, and Powers), morphine acetate, which was given the child, would prevent rather than cause convulsions; that the medicine administered was a sedative and would produce sleep. The prescription of Dr. Mayhall was for a sedative to produce sleep, and the child's death was accompanied with or immediately preceded its end by convulsions. All the doctors who testified expressed their opinions that cheracol (the medicine administered) would not have produced convulsions and the subsequent death of the child.

All the testimony shows that the child died of convulsions-that is to say, the medicine prescribed by the child's physician was not to prevent convulsions, but was a sedative to produce sleep; that the medicine actually administered to the child by its parents was a sedative, would produce sleep, and tend to prevent convulsions. Thus the jury may find from reasonable tendencies of the evidence that whether or not Dr. Mayhall intended to prescribe cheracol, the effect upon the child was the same; the medicine was only a sedative, would not produce convulsions or spasms, would relax and give the child rest or sleep, the result being the same from the administration of either remedy, except there was a tendency of the evidence that the medicine actually given the child would tend to prevent convulsions, a decided symptom attending its death.

One of the physicians further testified that an overdose of cheracol, the medicine complained of as being administered, would have the effect of an emetic and thus free the stomach of the child of such dose. The evidence fails to show that emesis resulted; hence this was the basis of an inference that may be drawn that no such overdose was given.

The undisputed evidence showed that the prescriptions were properly filled and delivered, as requested, to the parent, but the wrong bottle was represented to said Watkins to be that of his child. The prescriptions on the bottles-that for the Watkins baby and the other person, delivered together to said Potts-are meager as to the person for whom they were intended; they were in accord with the prescriptions. Prescription No. 32062 did not carry the name of any person; it was for the adult. Prescription No. 32064 had only the name "baby" written on it; hence the confusion or lack of direction or misdirection or cause of mistake. The prescriptions were properly filled and labeled by the druggist. The question of negligence vel non in the premises, on the part of the druggist was properly submitted to the jury under the conflicting tendencies of the evidence. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135. The verdict of the jury will not be set aside unless palpably erroneous, wrong, or unjust. Jena Lumber Co. v. Marlowe Lumber Co., 208 Ala. 385, 94 So. 492; Mann v. Butcher, 211 Ala. 669, 101 So. 595; Central I. & C. Co. v. Wright, 212 Ala. 130, 101 So. 824.

Refusal of charges substantially covered by other given charges (as 1 and 3 covered by 4 and 8) was not reversible error (section 9509, Code; Rule 45; Corona Coal Co. v. Sexton, 21 Ala. App. 51, 105 So. 716); and so of refused charges invading the province of the jury (McMillan v. Aiken, 205 Ala. 35, 88 So. 135; Bynum Bros. v. State, 216 Ala. 102, 112 So. 348).

Refused charges 2 and 5 were justified in their refusal by the use of improper words, respectively, as "delecterious" for "deleterious" and "durg" for "drug."

Refused charge C (6) was misleading when considered with all the evidence and its respective...