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character, and declaring that any per- the exercise of reasonable care on his son violating its provision, who is not part required him to ask the use to criminally prosecuted, shall forfeit which the preparation was to be put. $50 for every such violation, if the The decision of the lower court was druggist wrongly understood that the reversed on the refusal of the judge plaintiff had ordered a deadly poison, so to charge the jury. G. S. G.

OHIO COUNTY DRUG COMPANY, Appt.,

V.
FLORA HOWARD.

Kentucky Court of Appeals - December 14, 1923.

(201 Ky. 346, 256 S. W. 705.) Damages — punitive - liability of druggists.

1. A druggist is not liable for punitive damages in all cases when liable in tort for mistakes in filling prescriptions.

[See note on this question beginning on page 1362.] - when punitive allowed.

Evidence of experiment when 2. Both punitive and compensatory permissible. damages cannot be allowed for the 8. Experiments before the jury are same degree of negligence.

not permissible unless all the condiDruggist – care required.

tions are substantially the same as 3. A druggist is bound to exercise those existing in the case upon which the highest degree of care in dispens- they are intended to throw light. ing poisonous drugs.

[See 10 R. C. L. 1002; 2 R. C. L. [See 9 R. C. L. 704; 4 R. C. L. Supp.

Supp. 1131. See also note in 8 A.L.R. 621.]

18 et seq.] what is gross negligence.

- effect of drugs. 4. Failure of a druggist to exercise 9. An experiment before the jury, slight care in dispensing poisonous as to the effect of a druggist's mixture drugs is gross negligence.

upon a well man, is not admissible to Damages for mistake of druggist

contradict evidence as to its effect uphospital fees.

on a sick and run-down woman suing 5. Only such hospital fees and medi- for damages for its alleged harmful cal expenses as proximately result

effect upon her. from a druggist's mistake in filling a - presumption as to effect of drugs. prescription can be allowed as dam

10. Human beings are not sufficientages against him for the mistake. ly alike to warrant the presumption [See 9 R. C. L. 704, 709.]

that when a drug produces a certain - epidemic as excuse for mistake. effect on one person, it will, to a cer

6. A druggist is not relieved from tain extent, similarly affect another, liability for injuries caused by a mis- taking into account age, strength, and take in filling a prescription, by the other conditions present. fact that, owing to an epidemic, his Appeal - rejection of evidence - disclerks were nearly exhausted.

cretion. - mitigation exhaustion of clerks, 11. The exclusion of evidence of an

7. Evidence that, because of an epi- experiment before the jury as to the demic, a druggist's clerks were nearly effect of a drug which is alleged to exhausted, may be considered in miti- have caused injuries for which damgation of punitive damages in an ac- ages are sought is not reversible ertion to hold him liable for injuries ror, since it is largely within the caused by mistake in filling a prescrip- sound discretion of the trial court. tion.

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APPEAL by defendant from a judgment of the Circuit Court for Ohio County in favor of plaintiff in an action brought to recover damages for personal injuries, alleged to have been sustained by a mistake in the filling of a prescription. Reversed.

The facts are stated in the opinion of the court.

Messrs. A. D. Kirk, Barnes & Smith, and blisters testified to by the plainJ. S. Glenn, J. F. Gordon, and Ernest tiff. Woodward, for appellant:

1 Wigmore, Ev. § 445; Mussellam v. Mental distress caused by informa- Cincinnati, N. 0. & T. P. R. Co. 126 tion that the drug taken was not the Ky. 500, 104 S. W. 337; Smith v. Middrug compounded is not a proper sub- dlesboro Electric Co. 164 Ky. 46, 174 ject for compensation in damages, in S. W. 773, Ann. Cas. 1917A, 1161: the absence of substantial evidence of Kohlhagen v. Cardwell, 93 Or. 610, 8 physical injury.

A.L.R. 11, 184 Pac. 610. Kentucky Traction & Terminal Co. The court erred in instructions asv. Bain, 161 Ky. 44, 170 S. W. 499; suming that a druggist is an absolute Setter v. Maysville, 114 Ky. 71, 69 S. insurer, since he is liable only for W. 1074; Fagan v. McRae, 169 N. Y. negligence. Supp. 577.

19 C. J. 778, 779; 9 R. C. L. $ 704; The court erred in striking from de- Tombari v. Connors, 85 Conn. 231, 39 fendant's answer the plea that a se- L.R.A.(N.S.) 274, 82 Atl. 640; Falkner vere epidemic of Spanish influenza v. Birch, 120 Ill. App. 281; Tremblay made such unprecedented demands on v. Kimball, 107 Me. 53, 29 L.R.A.(N.S.) defendant drug company as consti- 900, 77 Atl. 405, Ann. Cas. 1912C, tuted an act of God, and such defense 1215; Spry v. Kiser, 179 N. C. 417, 102 was available not only to mitigate S. E. 708; Howes v. Rose, 13 Ind. App. punitive damages, but to defeat the 674, 55 Am. St. Rep. 251, 42 N. E. 303; imposition of such damages.

Brown v. Marshall, 47 Mich. 576, 41 South Covington & C. Street R. Co. Am. Rep. 728, 11 N. W. 392; Fagan v. v. Barr, 147 Ky. 549, 144 S. W. 755; McRae, 169 N. Y. Supp. 577; Sutton 17 C. J. 283; National Casket Co. v. v. Wood, 120 Ky. 23, 85 S. W. 201, 8 Powar, 137 Ky. 156, 125 S. W. 279; Ann. Cas. 894. Shields v. Rowland, 151 Ky. 140, 151 Messrs. Heavrin & Martin for appelS. W. 408; McHenry Coal Co. v. Sned- lee. don, 98 Ky. 684, 34 S. W. 228; Louisville R. Co. v. Ellerhorst, 129 Ky. 142,

Clarke, J., delivered the opinion of

the court: 110 S. W. 823; Sherman v. Dutch, 16 Ill. 283.

From an attack of influenza, plainThe court erred in rejecting evi

tiff, Mrs. Flora Howard, was condence of tests theretofore made, and

fined to bed for four or five days in in rejecting an offer to make tests in

January, 1919, after which she rethe presence of the jury, which did

sumed her household duties, as well show, and would have then shown,

as her duties as assistant to the that the mixture taken was entirely

superintendent of schools for Ohio harmless, and could not, by any possi- county. She was not fully recovbility, have inflicted the horrible burns ered, however, and continued to be

allowed.

(201 Ky. 346, 256 S. W. 705.) extremely nervous and considerably Where in tort liability for comrun down, until in April she devel- pensation is based upon a want of oped neuralgia. Her physician then ordinary care or ordinary negliprescribed as a sedative a mixture gence, it is the rule in this state, and of 2 ounces of penta bromide and many others, to allow smart money one ounce of paraldehyde. The de- in addition if the negligence is gross, fendant drug company, in filling the but in no case that we have been prescription, by mistake substituted able to find are both a solution of formaldehyde for par- compensatory and

-when punitive aldehyde, and plaintiff took a tea exemplary damages spoonful of the mixture diluted in predicated upon the same degree of a small quantity of water as directed negligence, unless it be our own on the bottle and in the prescription. cases of this particular kind upon For injuries alleged to have resulted which alone appellee relies. In the therefrom, she instituted this ac- first of these (Fleet v. Hollenkemp, tion, and recovered a judgment for

13 B. Mon. 219, 56 Am. Dec. 563), $3,000, of which $2,000 was allowed this court held that the rules in reas compensatory damages, $700 for gard to the degree of negligence hospital and medical expenses, and necessary to exempt a party from $300 as punitive damages.

responsibility in certain cases do not The chief grounds of complaint by apply to a druggist in dispensing the defendant are that punitive dangerous drugs, that for all practidamages were not recoverable; that cal purposes the liability of a drugthe verdict is excessive in the gist in such sales is that of an inamounts allowed as compensation surer, and that the damages “may and for medical and hospital ex- be more or less exemplary or otherpenses; and that the court erred in wise, as the circumstances of aggraseveral rulings with reference to the vation or extenuation characterizing pleadings and evidence, and in the each particular case may reasonably instructions given.

require" in the sound discretion of Plaintiff alleged gross and wanton the jury, depending upon the nature negligence. The instructions au- and extent of the injury done and thorized the jury to award compen- the manner in which it was inflicted, satory damages, including hospital whether by negligence, wantonness, fees and medical expenses, if the de- or with or without malice. fendant "failed to exercise slight Even if this extreme case be accare" in filling the prescription; and cepted for our guidance, and which, to allow punitive damages in addi- in making of the druggist an insurtion, if the defendant "was grossly er, is out of line with all the cases negligent in so doing."

examined, we submit that it does There was no reference in the in- not warrant an instruction to award structions to wanton or wilful or both compensation and punitive reckless negligence, and gross negli- damages for the same degree of neggence was defined as the "failure to ligence, but only that liability for exercise slight care.It is, there- the former does not depend upon fore, at once apparent that both the degree. compensatory and punitive damages The next case is Smith v. Middlewere predicated upon precisely the ton, 112 Ky. 588, 56 L.R.A. 484, 99 same degree of negligence.

Am. St. Rep. 308, 66 S. W. 388, If this is the law, the druggist, where a drug clerk sold morphine whenever liable at all for tort, is for calomel, resulting in the death

liable to pay both of a five-year-old child. This case Damages punitive-labil. compensatory and holds that the highest degree of care ity of druggists.

smart money. That was required, that the sale was this is not the purpose of the law gross negligence “of an exaggerated we are sure, nor do we believe it form," and such as to authorize the ever has been so declared.

infliction of smart money; that the court erred in refusing. "an instruc- Upon this question it is stated, in tion defining ‘gross negligence,'— 9 R. C. L. 704, upon authority of the one asked for,—and predicating many cases cited in the notes, that upon it another permitting the “the legal measure of the duty of plaintiff to recover punitive dam- druggists towards their patrons, as ages if the jury find such negligence in all other relations of life, is propto exist." The instruction permit- erly expressed by the phrase 'orditing compensation is approved, but nary care, yet it must not be fornot copied in the opinion.

gotten that it is 'ordinary care' with By reference to the record in that reference to that special and pecase, we find that compensation was culiar business, and in determining predicated upon ordinary negli- what degree of prudence, vigilance, gence, and, this being true, it was and thoughtfulness will fill the renot error, but in accord with the quirements of 'ordinary care in general rule in tort cases in this compounding medicines and filling state, to allow punitive damages for prescriptions, it is necessary to congross negligence,

sider the poisonous character of The last case (Sutton v. Wood, many of the drugs with which the 120 Ky. 23, 85 S. W. 201, 8 Ann. Cas. apothecary deals, and the grave and 894) holds that the employment of fatal consequence which may follow a clerk, not a registered pharmacist, the want of due care. For people who sells strychnine in violation of trust not merely their health, but a statute, renders the employer their lives, to the knowledge, care, prima facie guilty of negligence and and prudence of druggiats, and in liable for damages occasioned there- many cases a slight want of care is by, and that a druggist is required liable to prove fatal to someone. It to exercise the highest degree of is therefore proper and reasonable care for the safety of the public that the care required shall be prodealing with him. The subject of

The subject of portioned to the danger involved." punitive damages is not discussed, In 19 C. J. 778, upon authority of so this case has no direct bearing practically the same cases, the rule upon that question.

is stated thus: “The legal measure It would be difficult from these of the duty of a druggist toward his cases, as it has been found on prin- patron is properly expressed by the ciple by other courts as well as this, phrase 'ordinary care' when conto define the different degrees of sidered with reference to that spenegligence that allow the one or both cial business. As applicable to such kinds of damages, but it is entirely business it calls for a degree of clear, even from these cases, that vigilance and prudence which is both kinds of damages are not re- commensurate with the dangers incoverable for the same degree of volved, and this has been defined to negligence. And, while it is stated be the highest practicable degree of in all of these cases that a druggist, prudence, thoughtfulness, and vigiin dispensing poisonous drugs, must lance, and the most exact and reexercise the highest degree of care, liable safeguards consistent with the

as indeed he must reasonable conduct of the business. Druggist-care in order to exercise in order that human life may not required.

ordinary care under constantly be exposed to the danger the circumstances, in only one of flowing from the substitution of them was this care defined by an in- deadly poison for harmless medicine. struction (the Smith-Middleton But he need not use extraordinary Case), and it was there defined as care or a higher degree of care than such care as ordinarily skilful and is ordinarily used by other qualified prudent men usually exercise in like druggists.' business and under similar circum- The instructions approved by this stances, which is, of course, in legal court in Smith v. Middleton, supra, terminology, ordinary care.

are in accordance with the above

for mis

take.

case."

clerks.

(201 Ky. 346, 256 S. W. 705.) texts and the great weight of au- another trial this instruction should thority, and, as that is the more be corrected to avoid the possiblity recent case from this court on the of any misunderstanding about the subject, and maintains the ordinary matter. distinctions in the degrees of neg- Complaint is also made of the ligence authorizing compensatory court's refusal to let the defendant and punitive damages, we think it plead or prove that, owing to a seshould be followed, rather than the vere epidemic then prevailing in the older case of Fleet v. Hollenkemp, community, the

community, the heavy demands supra, which makes of the druggist made upon defend

-epidemic as an insurer.

ant and its inabil- excuse Ordinary negligence was defined ity to employ addiin the Smith Case as “the failure to tional help, its clerks were worn out exercise such care as ordinarily skil- and nearly exhausted. That this ful and prudent men usually exercise fact would not excuse defendant's in like business and under circum- mistake or relieve it from all liabilstances similar to those in this ity is clear, we think, and the court

did not err in striking such allegaIf the first instruction in this case tions from the answer, or in not adhad been based upon ordinary negli- mitting such proof to affect defendgence thus defined, as upon both ant's liability for compensation. principle and authority we think it But it was competent in mitigashould have been, there would have tion of punitive damages, although been no error in allowing punitive not necessarily de

-mitigationdamages upon gross negligence, terminative of that exhaustion of which was correctly defined. This question. If, as this error, however, was favorable rath- evidence tends to prove, defendant, er than prejudicial to the defendant, in a possibly unwise attempt, was

since compensation nevertheless endeavoring, beyond -what is gross as well as punitive the strength and endurance of all negligence

damages was predi- the help it could then obtain, to supcated upon gross negligence; and a ply its customers with needed medireversal will not be ordered because cines during an epidemic, it seems thereof, but upon another trial, to only reasonable and just that that be ordered for other reasons, the in- fact ought to be taken into considstructions will be drawn as above in- eration in fixing the amount, at dicated.

least, of smart money that ought to The second instruction, authoriz- be inflicted upon it, over and above ing allowance for hospital fees and compensation for any injury plainmedical treatment, is also defective, tiff sustained. We are therefore of in that it does not make it clear that the opinion that the court erred in

only such expenses refusing to admit such evidence, unDamages for mistake of

as proximately re- der proper admonition as to its purdruggist

sulted from the mis- pose, and that this error was prejuhospital fees.

take in filling the dicial. prescription should be allowed, since Another complaint is of the rethis latter clause follows another fusal to permit a test to be made in separated by a semicolon from the

the presence of the jury, and the one relating to such expenses. Ordi- rejection of evidence showing the renarily this is not a reversible error, sult of like tests theretofore made, since the court, of course, meant to prove that the mixture taken by this limitation should apply to both plaintiff could not have produced the clauses, as was more clearly indi- effects she and several of her witcated by the fourth instruction, and nesses testified it did produce. it therefore would seem the jury There is no dispute about the mixought not to have misunderstood ture taken; the entire controversy what the court meant. Still upon being about its effect. Several ex

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