Willson v. Faxon, Williams & Faxon
| Decision Date | 04 April 1913 |
| Citation | 208 N.Y. 108,101 N.E. 799 |
| Parties | WILLSON v. FAXON, WILLIAMS & FAXON. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Fourth Department.
Action by Fannie E. Willson against Faxon, Williams & Faxon. From a judgment of the Appellate Division (147 App. Div. 920,131 N. Y. Supp. 1151) affirming a judgment for defendant, plaintiff appeals. Reversed and remanded.Charles Newton, of Buffalo, for appellant.
Carlton E. Ladd, of Buffalo, for respondent.
This case has been tried twice. Upon the first trial the plaintiff was successful, but the judgment entered upon the verdict in her favor was reversed by the Appellate Division, and upon the second trial, the evidence being the same, a verdict was directed in favor of the defendant. From the judgment upon that verdict the plaintiff now appeals.
The defendant is a domestic corporation engaged in selling drugs and medicines in the city of Buffalo. The plaintiff purchased at its store a box of medicinal pills labeled as follows:
The plaintiff testified, and in this she was corroborated by her husband, that the defendant's clerk from whom she purchased the box of tablets informed her that the preparation was the same as cascara sagrada only in tablet form. She made use of the tablets, taking them as she had been accustomed to take cascara sagrada for the purpose of a laxative; but the consequences were very different from those produced by that medicine. The plaintiff developed a case of mercurial salivation, and an examination of the tablets proved that each tablet contained one-fifth of a grain of calomel combined with senna and podophyllin.
In behalf of the defendant it was proved that the tablets known as Kascara Kathartics were manufactured by Billings, Clapp & Co., wholesale druggists of Boston, Mass., well known to the trade as reputable manufacturers of high-grade patent and proprietary medicines; that the defendant purchased the tablets in question from these manufacturers, the goods being put up by them at the manufactory with the special label of the defendant printed thereon; and that Kascara Kathartics had been upon the market for about 10 years. The quantities sold ranged from 500 to 1,000 pounds a year. From March, 1903, up to the time of the first trial in May, 1909, the defendant had sold about 900 boxes without complaint from any of its customers. It was stipulated that Kascara Kathartics was a patent or proprietary medicine, and it appeared that it was not the custom of retail druggists to analyze proprietary medicines.
The Appellate Division held that the proof utterly failed to establish the negligence of the defendant because it did not know that the tablets sold to the plaintiff were dangerous, and, having purchased them of a long established manufacturing concern of excellent reputation, it was justified in placing reliance upon its vendor. The Appellate Division also seems to have been of the opinion that the defendant was protected by the following provisionof the Public Health Law (Consol. Laws 1909, c. 45, § 235, subd. 2): ‘Every proprietor of a wholesale or retail drug store, pharmacy, or other place where drugs, medicines or chemicals are sold, shall be held responsible for the quality and strength of all drugs, chemicals or medicines sold or dispensed by him except those sold in original packages of the manufacturer, and those articles or preparations known as patant or proprietary medicines.’
[1] Where the contents of a medicine are concealed from the public generally and the manufacturer knows the contents and sells the medicine recommending its use for indicated maladies and...
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Stein v. Pfizer Inc.
...supra, 161 A. at 391 ; Thornhill v. Carpenter–Morton Co., 220 Mass. 593, 108 N.E. 474, 491 (1915) ; Willson v. Faxon, Williams & Faxon, 208 N.Y. 108, 101 N.E. 799, 800–01 (1913).And, at least one federal appellate court took “reliance” a step further and promulgated an “actual reliance” tes......
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Stein v. Inc, 1231
...Burkhardt, supra, 161 A. at 391; Thornhill v. Carpenter-Morton Co., 108 N.E. 474, 491 (Mass. 1915); Willson v. Faxon, Williams & Faxon, 101 N.E. 799, 800-01 (N.Y. 1913). And, at least one federal appellate court took "reliance" a step further and promulgated an "actual reliance" test. Under......
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Brumaghim v. Eckel
...[1982] [citation omitted]; accord Eberle v. Hughes, 77 A.D.3d 1398, 1399, 909 N.Y.S.2d 273 [2010];see Willson v. Faxon, Williams & Faxon, 208 N.Y. 108, 114, 101 N.E. 799 [1913] ). Generally, a pharmacist [944 N.Y.S.2d 331]cannot be held liable for negligence in the absence of an allegation ......