122 N.W. 1000 | N.D. | 1909
Lead Opinion
The plaintiff, Jacob Scherer, and his wife, Anna Scherer, were on March 20, 1906, the parents of a female child named Frances one day less than three months old. As far as shown by the evidence the child was healthful up to the time of the illness hereinafter described. On Sunday, March 18, 1906, this daughter became unwell. Tuesday morning, the 20th, Dr. Taylor was called and gave directions for the treatment of the child. He called again in the afternoon, and gave Mrs. Scherer a prescription on the drug store of the defendants. The doctor told the mother to send the prescription to the drug store, and that the medicine it called for would be in the form of powders, and to give one powder to the child every three hours. 'The husband was not present when these directions were given.. The prescription was sent to the drug store about 5 o’clock by Stella Brady, who gave it to one of the druggists in the store, and received in return a claim check. She left the drug store, and on her return -in a short time the same person to, whom she gave the prescription delivered to her the medicine. She carried it to the plaintiff’s residence, and was directed by the mother to place it on a writing desk, which she did. It was allowed to remain there until the return of the father about 6 :30 p. m., when he and the mother examined it, and commented on its being in a bottle and' a liquid, instead of in powders, as the doctor had stated it would be. The mother told the plaintiff that the doctor said it would be in powders, and his directions. She could not read English. The plaintiff could. He read, the label on the bottle and the directions. The name of some person was written on the label. He testifies that he could read the name “Rose,” but that the other name was blurred and could not be read; that
At the close of the case the defendants moved for the direction of a verdict in their favor on the following grounds: (1) That the evidence fails to show that the infant Frances Scherer died from the effects of administering, the liquid called for by the prescription Exhibit C; (2) that the evidence fails to show that the defendants, or their agents, were guilty of any act which, or the result of which, was the proximate cause of the death of the infant, Frances Scherer; (3) that there is no evidence in the case upon which the jury can base a deliberate judgment that the death of the infant, Frances Scherer, was caused by the administering of the liquid called for by Exhibit C; that such verdict, if rendered, would be necessarily based on mere surmise, conjecture, and speculation; (4) that the evidence fails to show any facts from which, or upon which, the jury can base any damages; (5) that there is no evidence in this case which can be used by the jury as a measure of pecuniary aid which the father might reasonably expect from the infant Frances Scherer, 'had she lived; that damages, if awarded, could not be the result of judicial determination upon the evidence, but would be the result of the uncontrolled discretion of the jury; (6) that the evidence discloses that Anna Scherer, the mother of the infant, Frances Scherer, was, in exercising the care and custody of said Frances Scherer, acting as the authorized agent of said father, Jacob Scherer; that the negligence of either th.e father, Jacob Scherer, or the mother, Anna Scherer, in exercising such care and custody contributing to the death of such infant, would bar a recovery, and that the evidence discloses affirmatively such negligence on the part of both Jacob
1. It is contended that there is no evidence which could have been considered by the jury to furnish a measure of pecuniary injury which the father suffered from the death of the child. The rule regarding the measure of damages recoverable by the father for the death by wrongful act of a minor child seems to be the probable value of the services of the child during minority, considering the cost of support and maintenance during the early and helpless part of its life. Haug v. Railway Company, 8 N. D. 23, 77 N. W. 97, 42 L. R. A. 664, 73 Am. St. Rep. 727; Morgan v. S. P. Company, 95 Cal. 510, 30 Pac. 603, 17 L. R. A. 71, 29 Am. St. Rep. 143; Little R. & F. S. Ry. Co. v. Barker, 33 Ark. 350, 34 Am. Rep. 44; Smith v. C. M. & St. P. Ry. Co., 6 S. D. 583, 62 N. W. 967, 28 L. R. A. 573; Sutherland on Damages, § 1273. No evidence is presented in the record showing the age of the father or the expectancy of his life. This has been held to be fatal to recovery by the plaintiff; but, as we view the law, it is an immaterial omission in this instance. It was a female child only three months old. Dr. Taylor testified that it was dangerously ill when he called to see it, suffering from uremic poisoning. It is obvious that, with a female child three months old, dangerously ill, the pecuniary value of its life during its minority is wholly problematical and speculative. It is conceded that in actions of this nature juries are not confined to the consideration of the evidence alone, as they are in many other kinds of actions, but they may exercise a much wider latitude in applying their own knowledge and experience than would be proper in most other cases, but it is
2. It is next contended that the judgment should be sustained because any verdict rendered for plaintiff on the evidence as to the cause of the death of the child must have been purely speculative and conjectural Dr. Taylor testifies that the child was dangerously ill with uremic poisoning. It is shown that it passed no urine for 24 hours, that its bowels did not act, and, without detailing the symptoms testified to both by the parents and others, as well as the doctor, that, with the exception of the slight contraction of the pupil, they indicated uremic poisoning, and not poison from morphine. The testimony of the physicians is in the main uniform on
3. It is urged in support of the judgment of the trial court that the father was guilty of contributory negligence, and that for this reason he was not entitled to recover. It is perfectly clear that, notwithstanding the inexcusable mistake or negligence of the defendant, no injury would have resulted except for the carelessness, or lack of care, of the parents in administering medicine which they knew differed in character, in dose,.and in the frequency of the dose from that prescribed by the physician in attendance. The doctor
The circumstances surrounding this case at the same time excite the profound sympathy of the court for the father and mother, and
As we find no error in the action of the trial court, its order is affirmed.
Dissenting Opinion
(dissenting). I am unable to concur in the result announced by my associates in this case, or in their reasoning upon any of the points passed upon -by the majority opinion.
The principles accepted by this court as governing the disposal upon appeal of cases tried to a jury in which a verdict has been directed by the court are so strongly established and well recognized that they cannot now be the subject of dispute or difference of opinion. When a trial court, at the close of the entire testimony in an action tried before it, holds as a matter of law that one party or the other is entitled to a verdict, and directs the jury -sitting in the case to find accordingly, and an appeal is taken from the judgment entered upon the directed verdict, observance of these principles requires this court to disregard all conflicts in the evidence, and in its consideration of the case to construe the evidence most strongly against the party moving for the directed verdict. If it appears from the evidence so considered that the facts shown are such that different impartial minds might -fairly draw different -conclusions therefrom, it follows that the issues of fact should have been submitted to the jury — the body of men provided by the Constitution and laws for the determination of disputed or doubtful questions of fact. “The rule is the same where the evidence is undisputed, if different inferences therefrom -may be -fairly deduced by intelligent minds.’' It is only when it can be said that all reasonable and fair-minded men mu-st, with the same facts before them draw but one conclusion from the evidence, that a trial court is warranted in any manner, or to any extent whatever, in controlling or directing the verdict of the jury. If, therefore, in the consideration of an appeal from a judg
The facts admitted by the defendants in this case disclose a gross- and entirely inexcusable act of negligence on their part. They were-druggists, engaged in the business of compounding the medicines prescribed by physicians, and furnishing the same to patients the-safety of whose health and lives are dependent upon the skill and’, care of those who undertake the performance of this highly important, delicate, and often dangerous duty. While so acting, they received a physician’s prescription which upon its face indicated that the medicine prescribed was to be compounded for the use of an-infant or “baby,” and, after taking time sufficient to enable them to-prepare the same with the greatest deliberation and care, delivered to the person sent to receive the medicine an entirly different compound, containing strong and poisonous ingredients that might be safely used only by a grown person. So little attention seems'tó have been given to the prescription for the infant’s.use that it was not known by the defendants that a mistake had been made, and that a medicine so dangerous to the life of the infant had been sent to it until two or three hours afterward^ when the medicine in considerable 'quantity had been administered to the child and the bottle containing it returned to them by its father. While it is true that a court, in the consideration of facts such as these, should not permit-emotional sentiments such as the sympathy or indignation to disturb-its judgment, or cause it to disregard well-established principles of procedure, it is nevertheless its duty to search the facts with the greatest care to determine whether the harmful effect that naturally proceeds from negligence so culpable as this has not in fact resulted, and, if the evidence shows such to be the case, to hold the negligent party to strict liability to the extent of the damage suffered.
The negligent act of the defendants is admitted, the death of the child following shortly thereafter is proved, and if there is evidence showing, or tending to show, that the death of the child resulted
The statute under which this action is brought provides for an action in'favor of the proper parties whenever the death of a “person” shall be-caused by the wrongful acts of another. Section 7686, Rev. Codes 1905. This statute was enacted with an apparent legislative intent to provide a new right of action for the redress of
Conceding that the pecuniary value of. the life of a child thee months old is at least nominal, and probably substantial, on what reasonable principle can it be held that the fact it was suffering from a dangerous disease renders a finding in support of plaintiff’s contention as to the cause of death “pure conjecture and guesswork?” It is admitted by the physician attending the child that, after the administration of the medicine containing morphine, the child exhibited symptoms of poisoning so unmistakeable that he considered it necessary, as an important part of his professional duty in the treatment of the case, to at once take vigorous measures to counteract these poisonous effects, and that his attention for a period of about four hours was devoted exclusively to that purpose. This treatment required the introduction of a rubber tube into the child’s stomach, through which was poured a solution of permanganate of potash, and the injection into its veins of atropine, both chemicals
Whether the poison operated directly in producing the child’s death, or acted as a predisposing cause by weakening its constitutional powers of resistence to disease, as testified by Dr. Engstad, the defendants are alike responsible. The fact that disease was also operating at the time of the administration of the poison, and that disease of itself might have been fatal, does not raise a presumption that it did in fact produce the child’s death. Death may be the result of several concurring causes, any one of which, operating alone, might not have fatal result. If the poisoning contributed to produce the child’s death by so impairing its strength and vital forces as to render the disease incurable, when without the poisoning it might have yielded to treatment, the defendants are liable to exactly the same extent as though it had been the only cause. A jury in an action of this character cannot apportion the damage allowed, according to the injury produced by each or two or more concurring causes. The point for the jury is, did the negligent aot of defendants operate as one cause, and did its effects contribute to produce the death of the child? If it did, the defendants will not be relieved of responsibility by showing that other causes operated at the same time to the same result. Louisville & C. R. R. Co., v. Jones,
The majority opinion holds that from the evidence introduced, “no jury could say what caused the child’s death.” This being true, it necessarily follows that neither the jury by its verdict, nor the court as a matter of law, could say that the child’s death was caused by uremia, “the dangerous disease” whose presence so complicated the situation. As death unquestionably resulted, it follows that the only conclusion possible from the evidence is that it was produced by a complexity of causes, prominent among which are the administration of the poisonous drug and the exhaustion attendant upon the treatment necessary to counteract its effect. How such conclusions could entitle the defendants .to a directed verdict I am wholly at a loss to understand. If the child had been in health at the time the morphine was administered, there could be no reasonable question but that its subsequent death was caused by poisoning. The fact, however, that it was at this time suffering with a dangerous disease, according to the holding of the majority opinion, at once removes the question of the cause of death into a region of speculation, surmise, and conjecture, and renders it impossible for a jury to render any verdict other than one in favor of the defendants. If such holding is to be regarded as a settled practice of this court, it becomes a serious question whether there can be said to be any liability on the part of a druggist who negligently compounds and delivers a poison to one already suffering from a dangerous disease.
Such holding is, however, as I regard it, more reasonable and consistent with principle than that which declares that plaintiff’s cause of action is defeated by contributory negligence on the part of the father. By the terms of the statute this action cannot be maintained by the father of the child in his own right, but only as personal representative of the child. The widow or children of a decedent may sue in their own names, respectively, but the father is without standing except as the personal representative. The cause of action falls within the jurisdiction of the county court as a portion of the
But the acceptance by this court of the doctrine that contributory negligence of a father is a defense to an action brought by him as a personal representative, for the death by wrongful act of a child, is, in my opinion, very far from warranting the further holding of the majority opinion that the father, Jacob Scherer, was, as a matter of law, guilty of contributory negligence in this case. There are facts bearing upon this question, which might have been given controlling importance by a jury, -which are entirely disregarded by
In determining whether or not the negligence of Scherer contributed to the death of the child, not only should all testimony that conflicts with the evidence of Scherer and his witnesses be disregarded, and all inferences taken most strongly in his favor, but whatever
In my view of this case there are disputed questions of fact, both upon the point of the cause of the death of the child and the contributory negligence of the father, which the trial court should have submitted to the jury for determination. Even though the rule requiring that the evidence be given a construction most favorable to the party ruled against were reversed, I believe the evidence on these points still presents facts from which different impartial minds might fairly draw different conclusions. To hold that all reasonable and fair-minded men, with the facts of this case before them, can draw therefrom but one conclusion almost reaches absurdity/in view of the fact that the judges of this court, after a long and careful consideration of the evidence, are divided in their opinion.
