White v. McComb City Drug Store

OoXj J.,

delivered the opinion of the court.

The court erred in visiting defendants’ demurrer to the replication to the second plea back upon the declaration. We recognize, of course, the rule that a demurrer at any stage of the pleadings searches the entire record, and will be applied to any of the earlier pleadings that are fatally defective. But in our judgment the declaration in this case states a good cause of action. It is not a case of the joining of a cause of action ex contractu with one ex delicto. The gravamen of the declaration, as we read it, is the action of defendants in willfully, knowingly, and oppressively, and in total disregard of plaintiff’s rights, refusing to deliver to plaintiff his prescription, after having willfully and oppressively refused to fill the same, claiming as the reason that plaintiff owed them a bill. If this be not a tort, both willful and oppressive, it would be difficult to conceive of one. Plaintiff would be entitled, on the facts stated, to a judgment for such sum as a jury would find, under proper instructions as to the measure of damage.

The court also erred in not sustaining plaintiff’s demurrer to defendants’ second plea. It does not respond to all the material allegations of the bill. It does not distinctly traverse nor explicitly confess and avoid. It, by inference, admits the refusal to give plaintiff back his prescription, but it does not deny that this was after defendants had refused to fill the same, claiming that plaintiff owed them a bill. The plea is further insufficient in this: that it seeks to justify defendants in refusing to give plaintiff back his prescription upon the ground that they had compounded the medicines called for in the prescription, and tendered them to plaintiff, who refused to pay the price demanded, and that, because the prescription had been compounded and filled, it became a record of defendants, and plaintiff had no right to demand or take possession of the same. It may be that apothecaries, after filling a prescription and delivering the medicines, have the absolute right to retain the prescriptions as a record of their business. Upon this point we express no 'Conclusive opinion,' because it is not necessary to the determination of the case presented by this record. But we cannot assent to the proposition that an apothecary who has refused to deliver the medicines called for in the prescription, because the party presenting it is unable or unwilling to comply with his terms as to payment, can retain in his possession the prescription, against a demand for its return. So to hold would be to place the sick largely at the mercy of the apothecary, and to cause suffering, and maybe death, to the poor, in eases where a demand for a cash payment could not be complied with. The rule contended for on behalf of appel-lees is not necessary for their protection. When a prescription is presented, they can easily ascertain before compounding the medicines whether their terms as to payment will be complied with. If the medicines are not delivered, they can have no need of the prescription as a record of their business or as an instrument of evidence. Having received a prescription, we think they should either deliver the medicines or return the prescription.

Reversed and remanded.