Wise v. Morgan

• Decision Date: 01 October 1898
• Citation: 48 S.W. 971
• Parties: WISE et al. v. MORGAN.
• Court: Tennessee Supreme Court

48 S.W. 971

WISE et al. v. MORGAN.

Supreme Court of Tennessee.

October 1, 1898.

Error to circuit court, Hamilton county; Floyd Estell, Judge.

Action by I. C. Morgan, administrator, against Harry Wise & Co. Judgment for plaintiff, and defendants bring error. Reversed.

Pritchard & Sizer, for plaintiffs in error. W. T. Murray, for defendant in error.

McALISTER, J.

Defendant in error recovered a verdict and judgment in the circuit court of Hamilton county against Harry Wise & Co. for the sum of $3,000 damages for the negligent killing of his daughter, Ella Morgan, a child about three years old. The facts of the case are few, and practically undisputed. In August, 1894, the child, being troubled with her eyes, was taken by her mother to an oculist for treatment. After an examination of the child's eyes, the oculist handed her mother the following prescription, to wit: "Sulphate of atropia, one grain; acid boracic, two grains; water, two drachms. Mix. Label: Two drops in right eye, three times a day. Dr. F. T. S." This prescription was filled by the firm of Harry Wise & Co., druggists of experience and established reputation in the city of Chattanooga. It was filled in exact conformity with the formula, and a label was pasted on the bottle showing the ingredients of the prescription, its number, and the date it was filled. This bottle was taken home by the mother, and placed on the mantelpiece, some three or four feet from the floor. The medicine was used by the mother for four or five days in the treatment of the child's eye, and was then discontinued, but the bottle was still left on the mantelpiece. About two weeks after the treatment with this medicine was discontinued, the child, in the absence of its mother, and while left alone in the room, got a chair, climbed up to the mantel, procured the bottle, and poured a portion of the mixture in a cup and drank it. In a short time thereafter she developed all the symptoms of atropia, or belladonna poison, and died on the following day. The father thereupon brought this suit as administrator against the defendants to recover damages for the death of the child. The gravamen of the action is that defendants failed to label the bottle "Poison," as required by the statute, and that the death of the child was the proximate result of this negligence or breach of duty on the part of defendants. The cause has been three times tried. The first verdict was for $1,000, which was set aside by the circuit judge upon the ground that the negligence of defendants was not the proximate cause of the child's death. The second trial resulted in a verdict for $500, which was set aside for the same reason. On the third and last trial plaintiff recovered a verdict for $5,000, and pending the motion for a new trial he entered a remittitur of $2,000, and thereupon the circuit judge overruled the motion for a new trial, and pronounced judgment for the sum of $3,000. Wise & Co. appealed, and have assigned errors.

Plaintiff insists that assignments of error Nos. 1, 2, 4, 10, and part of 11 cannot be considered by this court, because not assigned on the motion for a new trial in the court below, as required by the rule of that court. The first assignment in this court is that the circuit court erred in overruling the demurrer to plaintiff's declaration; second, in sustaining plaintiff's demurrer to defendants' second and third pleas. Counsel are in error in supposing that it was necessary to embody the questions made on the demurrer in the motion for a new trial. The demurrers had been acted on prior to the trial, and the action of the court entered upon the minutes. Since the action of the court upon the demurrers was in no wise connected with the trial of the cause, it was not necessary that such matters should again be brought to the attention of the court on motion for a new trial. It is true that the matters presented in assignments Nos. 4, 10, and part of 11 were not presented on the motion for a new trial, as required by the rule of court, and they will not be considered by this court. Bruce v. Hale (Knoxville; Sept. term, 1898) ___ S. W. ___.

The fifth assignment is that the court erred in refusing the following request, namely: "If, taking into consideration the intelligence of the person to whom the substance was sold, and the purpose for which it was intended to be used, the druggist had no reason to anticipate or presume that it would be taken internally, then the taking of it internally, and the death resulting therefrom, would not be such a probable or natural result of the failure to label the bottle as would make the defendant liable." The sixth assignment is that the court erred in refusing the following request, namely: "If the mother put this bottle where she thought the child would not get it, and the child, unexpectedly to the mother, got a chair, and climbed up to the mantelpiece, procured the medicine, and drank it, then the drinking of the medicine and the death of the child were not the natural or probable result of the failure to put the poison label on the bottle, and the defendant would not be liable." The seventh assignment is that the court erred in refusing the following request, namely: "If the obtaining of the medicine by the child was not due to any fault or negligence of the plaintiff, and if the presence of the poison label would not have deterred the child from drinking the substance, then the failure to put on such label would not be the proximate cause of the child's death, and defendant would not be liable." The eighth assignment is that the court erred in refusing the following request, namely: "If the substance sold to Mrs. Morgan, from the drinking of which her child died, was not poisonous or dangerous when used for the purpose, or in the manner it was intended, as indicated by the prescription on which it was sold, then the defendant was not required, under the statute, to put a poison label on the bottle in which it was contained, and his failure to do so would not be negligence." It is argued in support of these propositions that, if it be conceded that the failure to affix the poison label was negligence per se, yet that act was not the proximate cause of the injury, for the reason that the chain of causation was broken — First, by the fact that the drinking of the substance was not the natural or probable result of the failure to put on the label; and, second, by the intervening negligence of the mother in leaving the bottle accessible to the child....