Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1909-10-05
examined and held non-prejudicial tt

examined and held non-prejudicial to
defendant.
(Syllahus by the court.)
Appeal from a judgment of the dis
trict court of Mclean county and
from an order overruling a motion for
Judgment notwithstanding the YER
dict or for new trial. Winchester
j.
Action to recover damages for in.
jury resulting in the necessary kill
ing of a horse belonging to a plain
tiff. Defendant appeals.
affirmed
M. c. Spicer and T. R. Mockler for
plaintiff and respondent; J. T. McCul.
loch, Newton and Dullam, and Alfred
H. Bright, for defendant and appel
liant.
Opinion Of the court by Spaulding,
All concur except Morgan, G. j.. and
Ellsworth, j., not participating. :.
Jacob Scherer, as administrator OF, the
estate of Frances Scherer, deceased,
plaintiff and appellant, VS.. Franz
Schlaberg and Frank l.. Griffin, N Co
partners as Schlaberg and Griffin,
defendants and respondents.
death Of minor child by wrongful
act of defendant the measure Of dam
ages recoverable by the father is tho
probable value Of the services OF the
child during minority, to the father.
considering the cost of support and
maintenance during the early and
helpless part of it's life. g..
2. In an action by q father for
damages for the wrongful death OF
a daughter three months old. who Is
dangerously i'll with uremia when the
wrongful act complained Of was COM
mitted, the question of the pecuniary
injury of the father by the death OF
such child. II caused by the wrong
full acts of the defendants, is purely
matter Of speculation, conjecture
and guess work. and any verdict for
More than nominal damages In favor
Of the father. would necessarily be
btsed upon conjecture or sDecula4on,
3. The child. damages for whose
death bv wroneful act of defendants,
are sought in this actin by the fatAet,
was a girl three months old. dan9 e1-
ouslv i'll with uremia. A phvsiclat
was called and left with the parents
prescription on defendants drug
| store for medicine. BY mistake the
defendants druggist. medicine was
| given plaintiff containing one-eiehthI
of grain of mor3hine in each dose
directed to be given. The infant af1
forwards died. Held: Under the evil
dence, that the iurv. had the ~asa
been submitted IT, it for verdict
corld onl~ hive found a verdict YfoI
| r1aintiff based upon nure snecu'at'nT
and surnise as to the cause Of the
chjlds death. Il
d. When the nature OF the &vf
derce. in an action for DANA ees u
| such that no verdict for the nlaintih
can be returned except based upou
,nere conjecture. surmise or s3eculaa
ton. it is proner for the trial court
to direct verdict for the defendants
s. In an action under the statute
nrovilipe for the recoverv II dam
aoes for death by wrongful act If the
defendant the contributors negIigence
Of the plaintiff beneficiary is a de-
Tense. 'Fz
6. The prescription of an attending
musician called for medicine in the
form of powder to be given one
every three hours to an infant three
months old The prescription was
left with the mother of the child and
she was informed by the physician
that it would. be in powder for4l;-
and to give a dose once in thrte4
hours. BY mistake of the defendant
druggist, medicine put up for another
customer, in liquid form, the label on
the hottie being marked with The
i name of the party for whom O: WAS
1 prescribed, and containing directions
1 to give one tea-spoonful every tWo
j ho'srs until relieved, was delivered.
i The Plaintiff father was not present
when che information and the .direc
tinns were given the mother ty the
doctor. but before any of the medi-3
cine was given was Informed bv the
nst5er what the directions were He
also -sad the directions on the hot
!. tie and knew that the prescrintinn
il given had been for a powder = He
was present when the liquid was ID
| tninis.ered to the child, and hermit.
n Ted 1t to be done. After the Art
1 dose was given, and when nearly time.
& for the second dose to be administers.
/ ed, he suspected something wrong Il,
4 the medicine and teIephoned the dor.
Itor from the residence Of a neiebhos.