Guerin v. Huberwald ( 1920 )

OPIHIOH.

By his Honor

John ñt. PAul;

This is an potion for damages hy a husband and wife, against a druggist for alleged negligence in labeling a AT •prescription, in oonsequenoe Whereof the wife, having used the medicine according toAdirections indicated, instead of as .intended by her physician, suffered certain alleged physical and mental injuries, and the husband was thereby put to oertain alleged expenses. She answer is substantially a general denial.

I.

At the time of the occurences hereinafter mentioned the wife was pregnant, and five months of her period had gone by. Having on two former occasions Buffered a miscarriage, she had kept herself under the oareful Observation of her family physician, who up to that time had found no indication of any threatened mishap.

But as the result of her condition she had some pain in her limbs, and besides had contracted a slight cough. To relieve the pain in her limbs the physician prescribed a liniment containing a trace of Menthol, and equal quantities of Oil of Wintergreen and of Olive Oil, with direction to "Apply"looallylr Por the cough he prescribed Wild Cherry and Codeine, with directions to take nAfcea3poonful every three hours when coughing.'-

The"two proscriptions were filled at defendant’s drug store, and were handed to the husband in one package. It is not disputed that they wore correctly filled.

Arriving at home the hwshMifl gave the two bottles to his wife, who after having read the labels then took and swallowed a teaspoonful of the contents of that bottle which bore the label with directions to take "a teaspoonful every three hours," with the alleged results hereinafter mentioned.

IX-

It is an undisputed fact that when the two bottdls were produced in court, the cough mixture bore a label directing local application, and the liniment a label directing that a teaspoonful be taken every three hours. The attending physician, whose good repute is not cpisetionee, testifies that when he, first saw the trro bottles, upon being called in some few hours after the obnoxious dose was taken, tJoey were labeled its '••‘hen produced in court. The husband, and a friend who accompanied him, testified that the two bottles were handed hin in one package; the husband swears that he handed the two bottles to his wife ao-ft-ho re-ocirvo-T the bott.1 es as be reeoivPd them. The wife swears that she received t If. bo lulus fror. V •• and having merely examined the labels to ascertain which was which, she took a teaspoonful of the mixture contalned in that one of the bottles labeled "a teaspponful every three honra."

Defendant's manager, who saw the bottle of liniment in court, Mislabeled, admits that it came from defendant's establishment, but "won't admit that that is the label which was on the bottle when it was sent out."

She point is not insisted upon; and we ourselves, in the light of the evidence before us, the proverbial uncertainty of law suits, and the well known danger of takingdntarnally the unknown contents of lotions intended for external use only, will not assume that the labels were "switched" otherwise than by some negligence on the part of one of the defendant's employees. In the face of direct-evidence leading to a conoluaion not impossible or absurd, courts will not indulge in fanciful therries whioh, though possible are yet not even suggested by the evidence and in themeelves highly imponoíble. Sanchez vs Woodmen of World, IS Orleans Appeal. 24?; 1amourslie vs Pittsburg Plate Class Co, IS Orleans App. 374; Blook vs Ocean Ins Co, 10 Orleans App 284’DW^V(f>v. (^j^eXjntr w AwJ. Q¡t ¶ .

III.

The wife testifies that immediately upon taking the obnoxious dose she felt, a turning sensation throughout her whole body* that she gradually grew worse, and some hours afterwards called in the physioian who found premonitions of another miscarriage and accordingly ordered her to hed a$; - once. Thera she remained three weeks showing all the well known signs of an approaching miscarriage (which howerer gradually subsided) and with the dread upon her that euoh an ooourenoe was impending; that it was another three weeks before all immediate danger thereof had passed. In this she is corroborated by her husband and by the physloian.

IT.

The attending physicaln testifies that the burning sensation was oaused by the small (gqS&liglble) quantity of Menthol; that the sensation was purely local, and had no bad effect upon her, exoept psychologically, whan she realized that in her condition she had swallowed something not Intended -tku, for her stomach in its then delicate condition; but^the Oil of Wtntergraen which she had taken Was the exwitlng cause which sot in motion her own predisposition towards miscarriage. (NOTE; The exciting cause of an ooourenoe is the one whioh sets the other causes in motionj^lt is therefore the efficient or proximate cause. Inse Co vs Boon 95 U. S. 117; Lapleine vs M. La & Tex R. R. Co, 40Ann 661; Wellington vs Downer Kerosene Oil Co, 104 Mass 64; Vandenburg vs Truax, 4 Denio 464; And Scott vs Sheppard, 2 Wm Blaokstone 892, the celebrated and oft cited case of the lighted squib thrown in the market plaoe)

The physioian also testified that the text hooks warn against the use of that drug during pregnancy, and he referred to Hare’s "Practical Therapentios" Í9th Bdijion, 1902) e text hook long in use in the local Medical College; pointing especially to page 239 where it_sa4d\^t(Oil of Wintergreen, Saultheria) is about 96 per cent salicylate of methyl, xxx Owing to the large amount of salicylate of methyl contained in the oil, its physiological action is almost identical vflth that of salicylic acid, xxx The dose may he as high as 100 minims a day, but xxx very few patients can take more than 30 minims a day, without suffering from a disordered stomach." HOTA BEHE; At page 791 the dosage for oil of Wintergreen is given at from 1 to 20 minims; at page 783 oil of Saultheria, dosage 2 to 10 minims.

The physioian also pointed to (Hare) page 384, where it said "BIH2 thinks that full doses of Salicylic acid (p. 777, dosage 6 to 16 grains, and as aforesaid similar in its action to Caultheria) may produce abortion in woman who already have a tendency to abort, end VIHEBURG thinks that Menorrhagia and Mehiorrhagia are caused by it (that is to say, Tineburg looks upon it as an Emmenagogue) xxx Salicylio acid x x x is an trritant to the stomach."

The United States Dispensary (17th Edition, 1894) puts the percentage of sal.fcylla- ' snUfayTic ee-id ln in oil of Wintergreen somewhat lower than them 96 per cent. At pages 937-938, it Is said; "169 grains of the oil contain 162 grains of methyl salicylate and ars therefore equivalent to 138 grains of salloyllo aoidj" this is about 81 per cent***-¿~ •

Observing this percentage, and noting that the minim or drop is the 60th part of a fluidrachm (fluid-drachm) and therefore the liquid equivalent of one grain (approximately), we see that 20 minims of (liquid) Winterpreen oil are the equivalent of 16 grains of (crystalized) salicylic acid, and that both are full doses.

Observing also that a teaspoonful is one fourth of a tablespoonful and therefore one i eigth of a fluidounoe, we see that it contains Just one fluldraohm, or sixty minims; and hence we find that when the lady took a teaspoonful of the mixture, she took just THIRTY minims (drops) of the oil of 'Wintergreen, that is to say, at least 50 per cent more than a full dose.

VI.

We do not know who BIN2 and VIHEBURG are; but when we find that a text book uped in a Standard Medical College, and therefore daily in the hands of skilled professors, refers to them simply by their patronymics, we may fairly assume that they aa» some weight as authorities; Just as a layman, reading one of our own text books, and meeting such expressions as, "Pothier is of opinion x x x, Blaskotone holds xxx, Kent thinks x x x, etc", might justly conclude that these authors, though perhaps unknown to him, are entitled to some respect in the domain of law.

VII*

But whatever he the weight to he given to Bins and Vinehurg as medical authorities, it is certain that they are quite in accord with authors with whom we are better acquainted*

Wharton én¿ Stillers Medical Jurisprudence (3905), page 49 and 50 (Sections 82 to .96), tells us in substance that the use of drugs for the purnose of c-using abortion has been praotically without success; and the reason is obvious, as "only one or 'two have proceed abortion without causing the death of the woman". or at least the symptoms of intense poisoning; but that Irritants. Purges and iSmmenagoguos KAY produce abortion, the first two by their secondar^r effects, and the last by their direct action on the uterus• To the same effect see Beck's Medical Jurisprudence (1850) Volume 2 page 428 to 4?5, which adds that a rredisposition to miscarriage and other circumstances arc factors in the result produced*

VIII.

Against this we have only the "ipso dixit" of another physician, called as an expert, that in his opinion oil of Winteggreen could not have produced the effect hereinabove ascribed to it, end that there is no drug known to ;nedic5.ne capable of oausing abortion unaided by mechanical means.

If we are to understand by this that oil of Wlntergrean is not appropriate to the purpose of bringing on premature parturition legitimate (?) or otherwise; and that there is no drug whose aotion .in that respect is pertain in its result and altogether unattended by danger to the wora^n herself, then the witness is quite in acqord with the authorities.

If however we are to understand therefrom that there can be no connection between the lady's illness and the drug which she swallowed, then we cannot accept his unsupported opinion against that of the attending physician, supported as it is by the authorities above set forth; not only because he finally deoline3 to commit himself quite so far, but also for other reasons into which we will not enter; and again because in matters of this nature, the opinion of the attending physician is entitled to greater weight than that of others who have not seen the patient, and whoso fine-spun theories are often utterly destroyed by grim and stubborn faots. Mc Cubbin vs Hastings, 27 An 713; Walton vs Booth, 34 An 913; Fleet & Semple vs Hollenkamp, 13 Ben Monroe (Ky) 219.

IX.

As to the Quantum, we find thiit plaintiffs have establish^ special damages as claimed, towit $97;j

and for the pain and suffering (mental and physical) of the wife we think the further gum of $100 shfuld he just compensation. Kven if this amount he not aioot, it le etlll allowable for the violation of plaintiff* legal rights, even though unattended hy oiroumstanoes indicating any wantonneaa. Davis vs Ry Co, 117 La 320; Bourdette vs Seeward, 107 La 258; Green vs Dairy Co, 113 La 89; Orlesch vs Auto Co, 13 Orleans App 303. For Druggists and Apotheoaries are insurere of the compounds they make up for sale. 13 Ben Monroe 219 (Supra); Doyle vs Fuerst & Kraemer, 8 Orleans App 408 (129 La 838).

The judgment appealed from is therefore reversed, and it' is now ordered that there he Judgment in favor of the plaintiffs Mr. and Mrs- Henry R. Guerin, and against the defendant August Huherwald, for the full sum of Orie hundred and Ninety seven Dollars ($197) with legal interest from judicial demand until paid, and the costs of hoth courts.

Hew Orleans La, January 1910