Reynolds v. Grove Professional Pharmacy, Inc.

FLANIGAN, Judge,

concurring in the result.

I concur in the result.

Defendant’s motion for judgment notwithstanding the verdict, which the trial court erroneously sustained, was based on this ground: “There is no allegation herein, and no proof was adduced at trial, direct or circumstantial, that the injuries for which recovery was sought did not result in Dr. Reynolds' death."

On the morning of the trial, plaintiff Dorothy Elizabeth Reynolds voluntarily dismissed Counts I and II of the second amended petition, and the case proceeded to trial on Counts III, IV and V. The dismissed counts, I and II, were alternative statements of a wrongful death action asserted by plaintiff Dorothy Elizabeth Reynolds. Among the allegations in the dismissed counts was the allegation that on or about April 4, 1990, James 0. Reynolds died, “and the defendant’s dispensing ‘Cor-gard’ to him caused or contributed to cause his death.”

Section 537.020 reads, in pertinent part:

1.Causes of action for personal injuries, other than those resulting in death, whether such injuries be to the health or to the person of the injured' party, shall not abate by reason of his death, nor by reason of the death of the person against whom such cause of action shall have accrued; but in case of the death of either or both such parties, such cause of action shall survive to the personal representative of such injured party, and against the person, receiver or corporation liable for such injuries and his legal representatives, and the liability and the measure of damages shall be the same as if such death or deaths had not occurred. (Emphasis added.)

Three days prior to the commencement of the trial and the dismissal of Counts I and II, the “plaintiffs” and the defendant filed a document entitled “Admissions or Stipulations for Trial.” That document reads, in pertinent part:

1. On or about August 10, 1989, Grove Professional Pharmacy sold to James O. Reynolds medication represented to be “Cordarone” in the ordinary course of defendant’s business.

2. The medication represented to be “Cordarone” was taken by James O. Reynolds and was in fact “Corgard.”

3. That the sale of “Corgard” to James 0. Reynolds by defendants was a mistake.

4. That at the time of his death, James 0. Reynolds held a cause of action against Grove Pharmacy which survived to his personal representative, Dorothy Elizabeth Reynolds. (Emphasis added.)

During the trial, plaintiffs’ counsel asked Sherri Grove, a registered pharmacist and an officer of the defendant, whether the prescription was filled with Cordarone. The witness answered that it was not and that it was filled with Corgard. At that point, the following occurred:

[Defense Counsel]: If I may, Judge, Mr. Placzek well knows that none of this is at issue. The fact that the prescription was mistakenly filled has been admitted to the jury in the form of a stipulation, and it’s simply not an issue in the trial.

The Court: Is there an objection?

[Defense Counsel]: Yeah. I object to the entire line of inquiry. I think we’re wasting time, Judge.

The Court: Be overruled. You should answer. (Emphasis added.)

By paragraph 4 of the stipulation, the parties agreed that the cause of action of James 0. Reynolds survived to his personal representative. The cause of action for personal injuries could not survive to the personal representative unless it was a cause of action for personal injuries “other than those resulting in death.” By the stipulation, the parties agreed that the injuries of James 0. Reynolds, which were sued for in Count III and Count IV which proceeded to trial, were personal injuries other than those resulting in death.

The stipulation cured the deficiencies claimed in defendant’s motion for judgment notwithstanding the verdict.