120 Ky. 23 | Ky. Ct. App. | 1905
Opinion by
Reversing.
Appellees were druggists at Springfield. One of tlieir firm (appellee Mudd) was not a registered pharmacist, nor did he know anything about the mixing of drugs, or technically of their nature and qualities. Mrs. Sutton, through her son, bought of appellees — so the petition charges — a bottle of morphine for medicinal purposes, But instead of delivering
The circuit court struck out of the petition certain matter alleged, of which appellant complains. After alleging the facts set out above, and stating that appellees delivered to intestate’s son a package containing one-eighth of an ounce — an unusual quantity — of strychnine, the petition contiuned: * * * “Wrapped in a paper without any mark or label on the outside of said package designating the name of the poison contained therein, or the name of any antidote for such poison; that at the time said strychnine was so sold and delivered by defendant, Herman Mudd, he was not a registered pharmacist, nor did he have a certificate of registration from the Kentucky State Board of Pharmacists authorizing him to sell or dis
Another averment of the petition stricken out on motion of the defendants was the statement that plaintiff’s intestate whs caused to suffer intense pains and anguish, as a consequence of having had the strychnine given to- her. This action of the court was presumably upon the idea that causes of action for physical suffering and for death could not be joined. But each being sufficiently pleaded, it was not the province of the defendant to select which of them he would have
The instructions to the jury, while submitting unobjectionably the question of defendant’s negligence, aside from their statutory duties omitted, were erroneous in not also submitting the latter phase of the case. The jury should have been told that if defendant Mudd, who was not a licensed pharmacist, sold to Allen Sutton, for his mother, strychnine, in quantity of five grains or more, without inquiring the purpose for which it was intended, and without entering in a book kept for that purpose the name of the seller, the name and residence of the buyer, the name of the article, the quantity sold, and the purpose for which it was intended and without affixing to the bottle a label printed or plainly written, containing the name of the article, the word “poison,” and the name and place of business of the seller, with the common name of two or more readily accessible antidotes, and that Nannie Sutton came to her death by reason of such failure, if any there was, the law is for the plaintiff, and the jury should so find. The measure of damages and the law as to punitive damages were correctly stated to the jury.
The instructions given on contributory negligence are marked “2” and “4,” respectively, and are as follows:
“(2.) The court instructs the jury that it was the duty of the decedent, Nannie Sutton, and of her agents and servants attendant upon her, to use ordinary care to discover the true and real contents of the bottle from which the posion is claimed to have been administered ; and if the jury believe from the evidence the said Nannie Sutton, or her agents or servants act*33 ing for and attendant upon her, negligently failed to open the package delivered to Allen Sutton for the said decedent, or negligently failed to look at the label thereof, or negligently failed to discover the nature istered to the said decedent, or negligently failed to discover the nature of same, then, in law, the decedent is chargeable with contributory negligence, and in that event the law 'is -for the defendants, and so the jury should find.-
“(4.) ‘Contributory negligence,’as used in these instructions, means such negligence upon the part of decedent, Nannie Sutton, or her agents or servants acting for her, as that, but for same, her death would not have occurred.”
If Nannie Sutton was herself so negligent in the matter, but for which the injury to her would not have occurred, it seems clear that her estate ought not to recover, under the familiar rule governing contributory negligence prevailing in this State. But we do not understand, though, that Mrs. Sutton had no right of action because of defendants’ negligence if somebody else’s negligence than her own concurred in producing her injury. We understand the law to be just the contrary. If Mrs. Sutton’s nurse or servant negligently administered the wrong drug or poison, inflicting death, the servant would be liable to the decedent’s estate in damages. This, however, would not excuse the druggist who had also been negligent in furnishing the drug, whereby the wrong drug was provided. Both the druggist and the servant might be liable. If the agent neglects his dnty to the principal, inflicting an injury on the latter, he is liable, just as the negligent master is who inflicts an injury on his servant. If the master and another by their joint or concurring negligence injure, the servant, both tort feasors are liable in damages. Upon the same prin
It is not true, either, as stated in the sixth instruction, that the druggist and the customer are under the same degree of care in the furnishing and taking of the drug. The fact alone that one is prohibited from acting in the matter at all, except under a license, and after a technical training, evinces that there is a difference, and a necessary one, between the care to be observed by the pharmacist and by his customer. The latter’s duty is to exercise ordinary care for his owin safety; the former’s, to exercise the highest degree of care for the safety of the public dealing with him.
The judgment must be reversed, and the cause remanded for a new trial consistent herewith.
Petition for rehearing by appellee overruled.