The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-12-20
OPINION OF THE COURT BY PERRY. J.


OPINION OF THE COURT BY PERRY J.
Plaintiff brought action claiming three thousand dollars
damages injury alleged have been caused by defendant to
her health feelings person property allegations
If the declaration being follows:
cd That the defendant Honolulu, Island
Oahu general drug and apothecay business and sells med
icines and puts up prescriptions
2) That of the prescriptions cstomary put up and
sold by the said defendant towit prescription Number 5,73O
the complexion and designed be applied the
face the ingredients OF which said lotion unknown the
plaintiff, but the in poisonous harmful to
the skin.
"(3l That about the day of October A. d. 1899,
plaintiff ordered from said defendant bottle of said lotion and
defendant then sold and delivered plaintiff bottle of liquid
purpOrng be and represented by defendant the lotion
ordered by plaintiff namely prescription Number 1870.
20 That the liquid sold and delivered by defendant
aforesaid the lotion ordered by plaintiff, that it
tanned poisonous and deeterious ingredient included
the prescription ordered but neggenty and carelessy in
serted by said defendant
90 That plaintiff believing said liquid be the pre-
scrpon ordered by her aforesaid applied the her
face poisoned burned injured her skim and
caused her great pain and suffering
(6) That further result of the injury caused by
said liquid plaintiff confined her home for several weeks
and compelled obtain medical treatment and employ
substitute discharge her duties teacher under the Board
of Education
The jury rendered verdict the plaintiff five hundred
dollars damages. The this Court number of
exceptions by the defendant all which except those herein
considered have been abandoned by counsel for the appellant
The evidence adduced 10y the plaintiff tended show that
the defendant had prior October 81
1899 prepared and sold the plaintiff and that the plaintiff
had used without injurious effect certain lotion for the
pexon designed be applied the face and known pre-
scrption number 3O that the prescription called for BIZ
chloride of mercury, grains methylated spirits
aqua ounce and oil of nero drops; that October
81 1899 the plaintiff ordered of the defendant bottle of the
lotion and that response defendant sold delivered
her bottle of liquid purportng be the lotion ordered that
in fact the liquid last delivered contained grains of
bchorde of the in place Of four grains of
that drug the required by the prescription; and that
the grains additional bchoride mercury ounce
placed in the lotion by of the negligence Of
defendants agents At the close the plaintiff
the defendant moved for the ground var
lance between the peadnes and the proofs argument being
that the evidence Just reced did support the allegation
that the liquid sold contained poisonous and Ielctcrious
ingredient included in the prescription ordered but nee
gently carelessl by defendant The motion
denied and exception noted The question was
preserved by the defendant by the presentation of
quests for instructions the jury and exceptions refusal
Of the trial judge to give the
The language of paragraph Of the declaration above quoted
capable Of being interpreted apply
ordered, Of ingredient though the kind a. one
"rleredn other words if grains i ordered and in addition
TO such grains another - grains included n grain.
may be said to be an ingredient ordered, In this view
there Of variance between declaration and
the proofs Assuming however, that the language Of the dec
araon should be construed meaning an ingredient fin
j" KIND from any of those named in the original prescription
and that therefore there variance btwecn proofs and