Murdock v. Walker

Gary, J. The appellant is a physician. The appellee is administrator of his own infant son, who being ill, the appellant wrote a prescription which, by lapsus calami, had piolv. instead of camph. following opii. The result was that the baby took it and died. The suit is for the damages sustained by the next of kin in consequence of that death. The declaration alleges a prescription of a “ poisonous medicine, to wit, the tincture of opium, otherwise known as laudanum.” The whole prescription consisted of four ingredients, and as only one of them could be translated “laudanum,” the appellant objected below, and now insists that there was a variance. It is only, however, a case of proving more than alleged, which is no variance. 1 Green-leaf on Evidence, Sec. 67. The prescription was headed “For George Walker (baby),” and the appellant testified that he had directed the family to take his prescriptions to another drug store than the one where this was filled. The preponderance of the evidence is that the proper form of a prescription of laudanum is “ Tr. opiiffi and the addition of “gulv.” is not used, though it adds nothing to the meaning, while the addition of “ camp?’' does change it. Then he offered to show a custom among druggists in Chicago, that on a prescription, showing that it was for a baby, such a prescrip-' tion as this was, would hot be filled without consultation with the physician. The argument is that the, negligence of the druggist, which the appellant could not anticipate, was the proximate cause of the misfortune, which relieves him from liability. But the authorities cited—1 Shearman & Redfield on Neg., Sec. 34, 2 Thomp. on Neg., 1089; do not support that position. At most, the negligence of the druggist concurred with that of the appellant in producing the result, which is not a defense. 2 Thomp. on Neg., 1088. Even the exception there stated by Thompson is now rejected by all authority which governs us. Chicago City Ry. Co. v. Wilcox, 33 Ill. App. 450. No error was committed, therefore, in refusing to admit evidence of that custom. On the whole case the judgment must be affirmed. Judgment affirmed.