Spry v. . Kiser

Walker, J., after stating the facts as above: When there is a non-suit upon the evidence, the appellant, as we have so often said, is entitled to have it considered as true and construed most favorably for him, and, he must also have the benefit of every inference that may reasonably be drawn therefrom. Brittain v. Westhall, 135 N. C., 492; In re Will of Margaret Deyton, 177 N. C., 503; Angel v. Spruce Co., 178 N. C., 621. We do not pass upon the sufficiency of the evidence, but, as said in the Margaret Deyton case, supra: “In the ease of a nonsuit or dismissal under the statute, the court does not weigh the evidence, but merely assumes it to be true in favor of the defeated party.” If the evidence in this ease is tested by this rule, it will be found ample for the jury to consider. The witness J. W. Newsome stated that he applied to Francis Eiger, the clerk in the defendant’s store, for sweet oil, not cottonseed oil, and Eiger said he had no more 5-cent packages, but had 10-eent packages, thereupon the witness replied, “That will do if it is pure and all right.” Eiger then stated, “It is pure sweet oil; I will guarantee it,”' and Newsome purchased a bottle, when he returned home he gave the child the usual quantity in a spoon, and very soon thereafter he was taken suddenly and seriously sick, in the manner described by the witness, and died from this illness about two weeks afterwards. When he smelled *421 the liquid in the bottle it was found to be “rancid,” which word means having a rank smell or taste from chemical change or decomposition. There can be no doubt of there being evidence-that the oil caused the sickness, which resulted in the child’s death, without resorting to the doctor’s expert opinion as a part of the evidence. But he was asked to smell the bottle, and to state if the rancid oil did not cause the Vomiting and other symptoms, the doctor answering, “That is stale, rancid, and out of date. I know what to fight now; that is the cause of it,” and Mr. Griffin, one of the defendants, stated, when asked by the witness if the State Chemist should find him with such oil, “I would say we kept it to grease automobiles,” and the witness added, “Yes, to kill babies.” When another doctor read the analysis of the oil, as made by the State Chemist, he remarked with profane emphasis, “No wonder the baby died.” We conclude, therefore, that there is evidence that rancid oil was sold to the plaintiff for the child, and that it caused its death, but this would not be sufficient for a recovery unless it was sold negligently. It is not our purpose to enter upon an extensive discussion of the law in regard to the liability of apothecaries, druggists, and pharmacists in the conduct of their business, a few general principles will suffice in this appeal, where the facts may not all be before us. It is said in 19 Corpus Juris, at pp. 780 and 781: “The law imposes upon a druggist the duty so to conduct his business as to avoid acts in their nature dangerous to the lives of others, and one who is negligent in the performance of such duty is liable for damages to any person injured thereby. Where a druggist’s clerk, in the course of his employment, negligently supplies a harmful drug in lieu of a harmless one called for, either by prescription or otherwise, and injury results from taking it, the druggist will be liable in damages.” . . . “A druggist who negligently delivers a deleterious drug when a -harmless one is called for is responsible to the customer for the consequences, as being guilty of a breach of the duty which the law imposes on him to avoid acts in their nature dangerous to the lives of others. The liability of the druggist in such case is not affected by the fact that he may also be subject to criminal prosecution, nor by the facts that the one purchasing the drug does not disclose the person for whom he is making the purchase.” The principle is thus stated in 9 Ruling Case Law, at pp. 702 and 703: “The public safety and security against the fatal consequences of negligence in keeping, handling, and disposing of dangerous drugs and medicines is a consideration to which no druggist can safely close his eyes. An imperative social duty requires of him such precautions as are liable to prevent death or serious injury to those who may, in the ordinary course of events, be exposed to the dangers incident to the traffic in which he is engaged, and it is therefore incumbent upon him to under *422 stand bis business, to know tbe properties of bis drugs, and to be able to distinguish them from each other. It is his duty so to qualify himself, or to employ those who are so qualified, to attend to the business of compounding and vending medicines and drugs, as that one drug may not be sold for another; and so that, when a prescription is presented to be made up, the proper medicines, and none others, be used in mixing and compounding it. ... A person engaged in the business of pharmacy holds himself out to the public as one having the peculiar learning and skill necessary to a safe and proper conducting of the business, while the general customer is not supposed to be skilled in the matter, and frequently does not know one drug from another, but relies on the druggist to furnish the article called for. . . . He must use due care to see that he does not sell to a purchaser or send to a patient a poison in place of a harmless drug, or even one innocent drug, calculate to produce a certain effect, in place of another sent for and designed to produce a different effect, and it is well settled that he will be liable for any injury proximately resulting from his negligence. Where death is caused by the negligence of a druggist the recovery of damages is governed by the usual rules relating to actions for wrongful death generally.” Speaking of the measure of care required of a druggist in selling drugs and medicines, it is said in 9 Ruling Case Law, at p. 704, sec. 11: “The legal measure of the duty of druggists towards their patrons, as in all other relations of life, is properly expressed by the phrase ‘ordinary care,’ yet it must not be forgotten that it is ‘ordinary care’ with reference to that special and peculiar business, and in determining what degree of prudence, vigilance, and thoughtfulness will fill the requirements of ‘ordinary care’ in compounding medicines and filling prescriptions, it is necessary to consider the poisonous character of many of the drugs with which the apothecary deals, and the grave and fatal consequence which may follow the want of due care. For the people trust not merely their health but their lives to the knowledge, care, and skill of druggists, and in many cases a slight want of care is liable to prove fatal to some one. It is therefore proper and reasonable that the care required shall be proportioned to the danger involved.” Another definition is “that ordinary care, in reference to the business of a druggist, must’ be held to signify the highest practicable degree of care consistent with the reasonable conduct of the business. Wilson v. Faxon, 208 N. Y., 108 (Ann. Cases, 1914, D. 49; 47 L. R. A. (N. S.), 693, and note); Peters v. Johnson, 50 W. Va., 644 (88 A. S. R., 909; 57 L. R. A., 428). Plaintiff alleges that the defendants represented the contents of the bottle to be genuine sweet oil of standard purity, and also expressly warranted it to be of that, kind and quality, and he offered evidence to prove *423 tbe truth of the allegation. He sues both on tort for negligence and on contract because of the warranty. It is not required of us to lay down the rule of damages upon either cause of action, as if he shows the actionable wrong, or the contract and its breach, he is entitled to some damages, even though they may be nominal, and this prevents a nonsuit. The court erred in dismissing the action. Its judgment of nonsuit will be set aside, and a new trial ordered. Error.