New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1875-05-09
ale,,, 0rleat1s &epnblita,l.
DfFIeIAl JOURNAL Of THE UNITED STATES
oFFjctAl JOURNAL Of new ORLEANS
IMPORTANT DECISION BY THE So.
PREME COURT.
Liability Of Druggis:s.

We publish below the full text of tn
judgment of the Supreme Court in the cas-
of McCubbin Va. Hastings Hornor &
Benedict, counsel Tor plaintiff. 1t is, W.
believe, the first case Of the kind in THU
State. 1t has been before our courts since
the latter end of 1868. 1t was twice tried
before juries in the Fifth District Court
and third time before Judge Theard in
the Fourth District Court, having been
transferred by consent and the jury waived
The case was then appealed by the plaintiff
to the Supreme Court, where it has been
under advisement for year. IL is grave
and important matter. The public are
deeply interested, for il establishes the
liability Of druggist if he improperly
compounds a prescription, and the patient
dies in consequence, just as clesrly as il
he had carelessly driven over him in the
public streets, and death folloTed
William McCubbin, tutor, etc, vs. Samuel
Hastings. Judge MOrgan-On Monday,
the twenty -sixth of August, 1867, the wife
of William McCnbbIn was attacked with
yellow fever. A physician was Immediately
called in, and the patient was placed under
the charge of nurse. On the Wednesday
following she was quiet. About one o'clock
of that day the physician ordered her an
enama. We are sails fed from the evidence
that the eLama as ordered was to have
been composed as follows: Sulphate of
quinine. thirty grains; mucilage Of gum
arabic, four ounces; camphor water four
ounces; Batley's sedative ISOLATION, thirty or
sixty drops to be administered, one half as
soon as received, the other in an hour after
We ascertain the component parts of the
prescription from the testimony of the
physician, as the prescription itself could
not be found in the defendants shop,
where it should have been kept The pre-
scrption was ordered by the physician to
he compounded at the defendants shop
The husband OF the deceased took it there
He handed it TO an employee. After it was
compounded he purchased An injection
pipe, paid for both and left. He gave them
to the Nurse. She administered portion of
1t. The effect seems to have been instanta-
neOus. 1t threw the unfortunate woman
into spasms and convulsons, causing her to
purge and vomit at the same time.
The attending physician was Immediately
sent tor. He could not be found, and only |
reached the patient late at night. He did |
all that his science allowed him to do |
for her relief. He called in another physi- |
clan. Their efforts were fruitless. Two |
days after the patient died. This suit is |
instituted by tho husband of the deceased |
and he father OF her child, minor, against |
the defendant to make him responsible in
damages tor the death of this woman, the
allegation being that the prescription was
improperly compounded. The evidence
leaves no doubt in our mind that Spirits OF
camphOr was substituted for camphor
water; that the sutferings of the woman,
which was shown to have been intense.
were caused by this mistake, camphor water
being very innocent preparation. spirits
,l,SN,, I...,, Il.
and alcohol, and that it contributed to a |
large extent if it did not absolutely cause
the death of the patient. Tho prescription
was not compounded by the defendant.
At the time 1t was put up he was not in the
city. The clerk had not been employed by
him. His services had been engaged by his
brother. The defendant is none the less
responsible for his acts. The employment
was authorized, and his responsibility for
the acts OF his employees can not be disputed
The case was twice tried before Jury In |
the Fifth District Court. 1t was then. BY
consent, removed to the Fourth District
Court and submitted to the Judge alone.
He decided in favor of the defendant, and
the plaintiff has appealed. In his own |
name plaintiff claims damages for the neces
sary expenses incurred by him consequent
upon the death of his wife, for the loss of |
time 1t OccasiOned, him, from tho loss of his |
wife's services, and by the wrongs inflicted |
upon his feelings. AS tutor to his minor t
child; he claims that from the agones en- | f
dured by his wife she suffered heavy dam
ages, and that her right OF action therefor
has been transmitted to her heir, and that
her death, which he lays at the defendants
door, having deprived the child of a {
mothers care, he Is responsible in damages t
on that account. {
The aggregate amount claimed from the | c
defendant is S35 goo. L
in la m ha ia IaI |
the amount expended by him for medical
and other services subsequent to the giving C
Of the enema, and for the funeral expenses d
The right to damages on the part of the h
child is that which he inherits from his t
mother q
The defendant filed peremptory excep- v
% plaintiffs demand on the around that | il
he petition disclosed no cause of action. a
This exception was filed after the jury had b
'een impaneled. The grounds upon which it
ests are: First, because it liz MOI alleged | al
hat the damage complained of was suffered | a
through the fault Of the defendant, and it 81
> necessary it should be alleged to be the u
efendants fault before that fact could be 81
roved, aud second, "Because it 1.-THE peti- | III
on) does not state that the defendant, as V,
lnployer, might have prevented the act to
hitch caused the damage, and did not do 81
i. The exception was sustained, but the al
efendaGt was allowed to amend. Plaintiff OF
xcepted to the ruling Of the court which nj
the exception. Defendant ex-
epted to the order allowing plaintiff to
mend m
Both rulings were correct. The excep- III
on was peremptory one. and could be hu
eaded at any time during the progress co
Inc trial. Amendments are always al of
wed III the discretion of the court di
Alter the amendment was made defendant | tai
zen pleaded the prescription of one year wi
he plea was properly overruled The de- TIL
and was made within the year of the DO
legged tort The demand is the test, and pc
IT the sutfciency of the allegations which ! WI
pport it, ha
But the defendant still contends that the pa
nended petition is DETECTIVES because it | in
'es not allege that he was in .ault. The be,
legations are that the death of the de. rel
sed was caused by the negligence of the tn.
clerk, and that he, the defend tn,
Il. might have prevented the act com \
aimed OF, but did not do 60 Ii the act tel
hlch caused the damage was done by the en-,
clerk, and the defendant be the
sponslble therefor, and the defendant sui
uld have prevented it. but did not. then ca,
Early it was by the tault of the defendant sol
at the damage occurred, and the use of de,
g word fault" was not IA necessary allie. ma,
ton 10 fix the responsibility .pon HIM sur
he could have prevented the act, and dad dol
{, he was necessarily in fault. 90,
On the trial the defendant moved to strike fur
the second and third causes of action us has
.ted in the petition. which are: second wi.
iso, as tutor OF his minor. for $40 ant
images suffered by the minor, personally. all
the loss and deprivation Of the care, by
ucatiou, assistance and love OF his spo
'ther." des
Thirdly his individual capacity and on sui
own behalf for $1,000 damages for ac- 4
VI expenses, loss OF the assistance and not