MacHlitt v. Myers

These two cases depend on the same state of facts, and will be disposed of in one opinion.

Adeline Machlitt, plaintiff in first case, and John H. Machlitt, plaintiff in second case, are wife and husband. The actions were brought against the defendants, retail druggists, to recover damages resulting from the use of an improper drug, or an adulterated drug, which it is claimed they furnished when arnica was ordered. The trial judge directed a verdict for the defendants in each case, and these proceedings in error are brought to secure a reversal of the judgments.

The evidence shows that Mrs. Machlitt had sprained her ankle, and that at her request a bottle of arnica was ordered from the defendants by her daughter over the telephone. Testimony was offered on behalf of the plaintiffs tending to show that when the drug arrived a tablespoonful of it was diluted in water, and shortly after the application of this to her swollen ankle she suffered much pain from a burning sensation, and that during the night blisters arose where the material was applied. The plaintiffs contend that by reason of the arnica being impure or containing some harmful ingredient it caused these blisters and resulted in soreness on Mrs. Machlitt's ankle to the extent that she was under the care of a physician and nurse for some weeks. The testimony offered in behalf of the plaintiffs tended to show these facts. Some of the arnica remaining in the bottle was analyzed, and testimony was introduced tending to show that it had an acid reaction, not in accordance with tincture of arnica made according to the United States Pharmacopoeia.

The defendants offered testimony tending to show the purchase of the arnica by them from a reputable wholesale druggist, and that the drug sold to Mrs. Machlitt was exactly what had been ordered.

The bill of exceptions contains some evidence tending to sustain all the essential averments of the petition, and it was therefore sufficient to carry the case to the jury, and the trial judge was in error in directing a verdict for the defendants, within the rule announced in Davis v. Guarnieri, 45 Ohio St. 470, 15 N.E. 350, 4 Am. St. Rep., 548, and Edelstein v. Cook,108 Ohio St. 346, 140 N.E. 765, 31 A.L.R., 1333.

The defendants offered testimony tending to show that some persons, under some circumstances, have a tender skin that would be affected, on the application of arnica, in the manner that it is claimed Mrs. Machlitt's skin was affected when the drug was applied to her ankle. To meet this testimony the plaintiffs in rebuttal offered to prove that during the trial she purchased a bottle of arnica from the defendants and applied the same to her skin, and that it produced no injurious consequences. This testimony was excluded. It appears to this court that it was competent, and should have been received in evidence; the weight to be given to the testimony being, of course, for the jury.

For the reasons stated, the judgments will be reversed and the causes remanded for new trial.

Judgments reversed and causes remanded.

CULBERT and WILLIAMS, JJ., concur.