Martin v. Bartell Drug Co. , 155 Wash. 317 ( 1930 )

The rule followed by the majority, that a druggist is negligent who furnishes a harmful article instead of one not so harmful ordered by a customer, and that the rule as to an original package sale by a druggist has no application in this case, is correct, and is sustained by overwhelming authority. But there is more in this case than that.

Some most important facts are not mentioned in the prevailing opinion and referred to only in a very general way.

Both these compounds are anthelmintic in effect. Neither is highly poisonous. Either is more toxic in effect when the system of the animal is not in proper condition to receive it.

Respondent treated eighteen of his foxes and only eight of them died. None of the survivors showed any symptoms of sickness. According to his evidence, they were all dieted in the same way and the drug was administered to them all alike, according to their weights. Respondent, however, gave no evidence that he knew how the man he had assisted once in worming foxes had dieted his foxes; or that he administered a purgative after giving the worm medicine, as the directions for both compounds advised. Respondent testified that, for six years before going into the fox business, he had been a retail grocer, and we must, therefore, conclusively presume that he was familiar with labels and their purposes; and there is no pretense that he was unable to read. There was no need for haste or prompt administration of the medicine in this case, and respondent kept the drug received from appellant for eight days before administering.

The negligence of a druggist varies with the increase or decrease of the banefulness of the drug furnished the customer as a substitute for some other drug. The more harmful the drug furnished, the greater the negligence. The less harmful, the less the negligence, until it becomes merely nominal. This is illustrated by the cases cited in the majority opinion, as in the case of "Rochelle salts" (Hendry v. Judge Dolph Drug Co.,211 Mo. App. 166, 245 S.W. 358). It is common knowledge that common salts of any kind are comparatively harmless. It is only because the name "Roachsault" was so similar to the name "Rochelle salts" that it could not have been said in that case that the customer was contributorily negligent as a matter of law in taking the dose from the article the druggist had furnished from which she sustained injuries. As a further illustration as to the negligence of the druggist, had the customer in that case ordered "Roachsault" for some purpose of her own and had been furnished "Rochelle salts," while the druggist would have been negligent, no harmful results would have resulted and there could have been no damage even under the implied warranty. The same thing is illustrated by the extract of dandelion case (Gwynn v. Duffield, 61 Iowa 64,15 N.W. 594, 47 Am. Rep. 802).

It was shown, undisputedly, in this case, also, that carbon tetrachloride had been in common use, for many years, by veterinarians as a vermifuge for animals, and that it was not highly poisonous, as was alleged by respondent. The fact that it apparently had a beneficial effect on ten of the foxes treated by respondent, and that only eight of them died, proves conclusively that carbon tetrachloride was not a highly poisonous substance. On the other hand, tetrachlorethylene, while a somewhat modified form of the same kind of vermifuge, must necessarily have had some of the same poisonous effect or it would not kill worms in animals.

The courts are in substantial accord that, even though a druggist made a mistake in delivering an article other than that purchased, yet must the plaintiff show that the negligent act of the druggist was the proximate cause of his injury. He must also show, as is generally required in negligence cases, that he himself exercised proper care in the premises. See notes to 31 A.L.R. 1586.

While the courts generally hold that the negligence of the plaintiff as a contributing cause to the injury is generally a question for the jury, yet, where it is conclusively shown that the purchaser of the article, having had ample time and capacity to acquaint himself with the article delivered and the method of its use before using, used no care whatever, no court has ever held that the druggist can be held responsible for the mistake.

We have consistently held that, where one of an age of discretion and in possession of his normal faculties and senses fails to see that which is plain to be seen and has an appreciable time to be warned thereby of approaching danger, but walks into the approaching danger, without heeding the warning, he is guilty of contributory negligence as a matter of law.

There is no reason why the same principle should not apply here. Respondent was competent and had ample time, means and opportunity, to examine the package received from appellant. He failed so to do and carelessly took a chance of administering a thing that he could have determined at a glance, by comparing with his slip of paper which he used to procure the drug, was not that precise drug.

For the foregoing reasons, I dissent and consider that the motion for judgment n.o.v. should have been granted.