West v. Emanuel

Jan 7, 1901
Appeal, No. 105
Reporters:
, ,
Before:
Brows
Per Curiam,

At the close of the plaintiff’s case and on motion of the defendant, the court entered a compulsory nonsuit, ‍​​‌‌​‌​‌‌‌‌​‌​​​‌‌​‌​‌​‌‌‌‌​​‌‌‌‌‌‌​‌‌‌‌​‌‌‌​‌‌‌​‌‌​‌​‌‌‌‌‌​​​​​‌​​‌‌‌‌‌​‌​​​​‌‌​​​‌‌​‌‌‌‌‌‌​​​​‍which on application of the plaintiff, it refused to take off. As the evidence introduced by the plaintiff failed to establish or disclose a cause of action against the defendant, the nonsuit was properly entered. The Kohler headache powders were ‍​​‌‌​‌​‌‌‌‌​‌​​​‌‌​‌​‌​‌‌‌‌​​‌‌‌‌‌‌​‌‌‌‌​‌‌‌​‌‌‌​‌‌​‌​‌‌‌‌‌​​​​​‌​​‌‌‌‌‌​‌​​​​‌‌​​​‌‌​‌‌‌‌‌‌​​​​‍in demand at least *182twelve or fifteen years ago and from that time on they were to be found for sale in most, if not all, of the principal drug stores. They were recognized and regarded as an efficient and proper ‍​​‌‌​‌​‌‌‌‌​‌​​​‌‌​‌​‌​‌‌‌‌​​‌‌‌‌‌‌​‌‌‌‌​‌‌‌​‌‌‌​‌‌​‌​‌‌‌‌‌​​​​​‌​​‌‌‌‌‌​‌​​​​‌‌​​​‌‌​‌‌‌‌‌‌​​​​‍remedy for headaches and were mainly used to relieve them. They were a patent or proprietary medicine manufactured by Kohler and sold by him to the drug stores which sold them to their customers. In the sales of patent ‍​​‌‌​‌​‌‌‌‌​‌​​​‌‌​‌​‌​‌‌‌‌​​‌‌‌‌‌‌​‌‌‌‌​‌‌‌​‌‌‌​‌‌​‌​‌‌‌‌‌​​​​​‌​​‌‌‌‌‌​‌​​​​‌‌​​​‌‌​‌‌‌‌‌‌​​​​‍or proprietary medicines furnished by the compounder of the ingredients which compose them, the druggist is not required to analyze the contents of each bottle or package he receives. If he delivers to the consumer the article called for with ‍​​‌‌​‌​‌‌‌‌​‌​​​‌‌​‌​‌​‌‌‌‌​​‌‌‌‌‌‌​‌‌‌‌​‌‌‌​‌‌‌​‌‌​‌​‌‌‌‌‌​​​​​‌​​‌‌‌‌‌​‌​​​​‌‌​​​‌‌​‌‌‌‌‌‌​​​​‍the label of the proprietary or patentee upon it, he cannot be justly charged with negligence in so doing.

Judgment affirmed.