Brewer v. Knight Drug Co.

Broyles, C. J. 1. The court did not err in sustaining the demurrers to certain amendments to the petition, and in striking them. 2. This was a suit against the drug company, in damages for personal injuries. The case sounded in tort, and was not based on breach of any express or implied warranty. The petition alleged that an employee of the company sold the plaintiff a lotion which the employee said would remove a wart from the plaintiff’s hand, and that he fissured the plaintiff the lotion was harmless. The lotion was in a bottle, and the directions pasted thereon were to apply the lotion to the “affected parts four times a day.” The plaintiff alleged that he carried out the prescribed directions and applied the lotion to his wart four times daily for about ten days; [353] that soon after he began using the lotion the wart turned black, and his hand began to swell and became inflamed and infected, and caused him great physicial pain and mental anguish, and finally resulted in his hand becoming infected with skin cancer; and that the injury to his hand “was caused proximately and solely by the said preparation sold to him by the said defendant, and was due to some harmful and dangerous ingredient contained in said preparation, the name and nature of which ingredient is unknown to petitioner, but necessarily within the knowledge of the defendant.” On the trial the .plaintiff failed to prove his very material allegation that the lotion sold to him contained “some harmful and dangerous ingredient.” If the allegation were true, it could have been sustained by proof of a chemical analysis of the lotion. Under these circumstances the court did not err in granting a non-suit. The cases cited by counsel for the plaintiff are distinguishable by their facts from this case. Judgment affirmed. MacIntyre and Guerry, JJ., concur.