85 Kan. 527 | Kan. | 1911
The opinion of the court was delivered by
Lilly Campbell, widow of David L. Campbell, sued Chase W. Brown to recover damages for the ■death of her husband, alleged to have been caused by the negligent sale to him of wood alcohol which it is ■alleged he mistook and drank for grain alcohol. She recovered a judgment and the defendant appeals, assigning as errors the admission of testimony, refusal to submit certain questions to the jury, the giving and refusing of instructions, and the denial of a new trial.
Certain witnesses were permitted to state that when receiving the stomach and liquid for examination they were informed by the persons delivering the same as to whence they had been taken. This was pure hearsay and entirely incompetent (Campbell v. Brown, 81 Kan. 480, 106 Pac. 87), but as other and competent evidence sufficiently established that the stomach was that of the deceased, and had remained in the condition it was
It is argued that if all this testimony be substantially correct the bottle must have been tampered with after its numerous depletions and before the sample was taken for analysis, and that therefore such sample was improperly used as evidence. The testimony is none too satisfactory, but as it consists merely of estimates, no one pretending to have measured the variously considered contents, taking it together with all the other evidence and circumstances we find no just cause for suspicion that the contents of the bottle had been surreptitiously increased but must conclude that the jury were warranted in believing the sample analyzed to be genuine. In other words, the various statements and estimates concerning the contents of the bottle were proper for consideration, and, realizing the inevitable inaccuracy of such mere estimates, it can not be said
The amended petition alleged that Campbell made application in writing for “one quart of alcohol, commonly called grain alcohol to be used by the plaintiff as a domestic medicine and defendant then and there undertook and pretended to fill the order as aforesaid”; also, “plaintiff alleges .that said application will show that this alcohol was purchased for a medicine.” The defendant introduced a copy of the application, which calls for a quart of alcohol and oil needed by a horse as medicine for the disease of “sprain tendon.” Considerable testimony was received as to whether this application was in its original form, one witness stating that he had examined it some time after it was made and that he did not remember that there was then written thereon “& oils,” “horse,” or “tendon.” Another witness who examined it three days after it was made testified that it was then in the same condition as when offered in evidence. The cross-examination of the defendant and the photograph copy found in the counter abstract indicate that certain words are written over certain others or over places where others had been written. At any rate the question whether the paper in evidence was a true copy of the application actually made was sharply contested. Several questions were requested to be submitted to the jury touching this application and its truthfulness and good faith, upon the theory that the plaintiff could not recover if the deceased fraudulently applied for alcohol to be used for medicine, intending to use it as a beverage. This being the ground and purpose of the questions, there was no error in such refusal, for even had such intention existed this would not preclude a recovery or justify a sale of poison without label. (Campbell v. Brown, 81 Kan. 480, 485, 106 Pac. 37.) One of these questions was whether the. copy introduced by the defendant was a true copy of the application
The seventh question submitted was answered by the jury to the effect that the color of the alcohol kept by the defendant on the date in question was white or clear, which answer is said to be contrary to the evidence. However, an examination of the testimony given by various witnesses on this point shows sufficient conflict to preclude us from interfering with the finding reached by the jury. Question nine was:
- “Did the deceased, David L. Campbell, purchase or have other and different liquors on the evening of February 22, 1907, than the alcohol bought of the defendant, Chase W. Brown?”
to which the jury answered, “No.”
It is earnestly insisted that this answer is in direct conflict with the only evidence given touching the question. The witness Hollanburg swore that he saw Campbell come back from the defendant’s store bringing a package comparing in size with the bottle said to contain the alcohol, and that he also had a jug of vinegar which witness knew was vinegar because he drank it; that as to the bottle of whisky “all I know about it is what they said, it was whisky, but I did n’t drink it.
“Ques. Who drank the whisky?
“Ans. Mr. Cunningham and Mr. Campbell.”
The only explanation of this answer is that the jury discredited or disregarded this witness, .and as there was no impeachment and the record shows no fact or circumstance tending to contradict him the writer is of the opinion that this answer was in direct conflict .with the undisputed evidence and should not have been allowed to stand, and especially so as the appellant in his
The refusal of several instructions requested covering ■the proposition that if the deceased obtained alcohol upon the statement that it was to be used as a liniment, intending to use it as a beverage, and then so used it, there could be no recovery, was proper, for the reason already stated.
It is argued that the pharmacy act operated as a. legislative construction of that provision of the crimes act requiring wood alcohol to be labeled as a poison, and that an instruction to this effect, requested by the defendant, should have been given. Section 260 of the
“Every person who shall sell or deliver to any other person any arsenic, corrosive sublimate, prussic acid, or any other substance or liquid usually denominated poisonous, without having the word ‘poison’ plainly written or printed on a label attached to the vial, box, or vessel or package containing the same, . . . shall on conviction be adjudged guilty of a misdemeanor, and punished by a fine not exceeding fifty dollars.”
Many years later the pharmacy act was passed (Laws' 1885, ch. 150), entitled:
“An act to prevent incompetent or unauthorized persons from engaging in the practice of pharmacy; also, to regulate the sale of poisons and proprietary medicines ; to prevent and punish the adulteration of drugs, medicines, medicinal preparations, and chemicals; and to create a board of pharmacy for the regulation of the practice of pharmacy in the state of Kansas.”
Section.1 (Gen. Stat. 1909, § 8095) makes it unlawful for any person to dispense medicine or poisons unless he be a registered pharmacist or has one in his employ, the penalty for violation being from twenty-five to one hundred dollars. Section 10 (Gen. Stat. 1909, § 8103) holds every proprietor of a drug store or pharmacy responsible for the quality of all drugs, chemicals and medicines he may dispense, and punishes a fraudulent adulteration thereof. Section 12 (amended by Laws 1887, ch. 174, § 4, Gen. Stat. 1909, § 8105) authorizes registered pharmacists to keep and sell, under the restrictions therein provided, all medicines and poisons authorized by the National, American, or United States dispensatory or pharmacopoeia, and makes it unlawful to retail any articles enumerated in schedules A and B without distinctly labeling the box, vessel or paper, and also the outside wrapper or cover, with the name of the article and the word “poison.” Certain other requirements were also made, not necessary to be noticed now. Schedule A includes poisonous vegetable alkaloids and
The amendments made by chapter 174 of the Laws of 1887 do not materially change the situation so far as this case is concerned. If the pharmacy act alone applies then it is lawful to sell wood alcohol unlabeled unless it is included in schedule A or schedule B, and if included such unlawful salé would be without penalty. If the crimes act applies then a sale of unlabeled wood alcohol by anyone, whether a registered pharmacist or not, would be a'misdemeanor. Whether wood alcohol is a “virulent poison,” to be classed with others named in schedule B as amended, we need not now decide. That it is within the phrase “substance or liquid usually, denominated poisonous,” found in the crimes act, we do decide. It is also argued that the later act operated as a repeal of the former so far as the sale of wood alcohol is concerned, but an ex.amination of both acts impels us to the conclusion that so far as this case is involved both are in force, the one unconstrued and unrepealed by the other.
It is finally urged that a new trial should have been granted because the jury returned a quotient verdict. In accordance with a practice which the writer believes never should have been permitted under the jury system, four of the jurors were examined as to the method used in arriving at the verdict for $8000. Their testimony showed, in substance, that upon reaching their room the jury were unanimous that the plaintiff should recover, and proceeded first to answer the special questions submitted. They then marked down what each juror thought the plaintiff should have, the amount's running from $5000 to $10,000, and when added and di
“Well, we thought if this thing was brought up and discussed we would probably be influenced by what one another said.”
Another, that they took a ballot to find out how everybody felt, to get at the sum as everyone thought, “and to keep from jangling and tangling about it.”
While this proceeding apparently included but little, if any, real discussion as to the reasons for allowing any given amount, and is not to be commended, still as verdicts are usually to some extent the result of comparison of views and compromise, we are not able to say that the one under consideration was such as must be set aside (City of Kinsley v. Morse, 40 Kan. 588, 20 Pac. 222), and our attention is called to no authority requiring such a holding.
Finding no material error, the judgment of the trial court is affirmed.