Breen v. Dow Drug Co.

1 Ohio Law. Abs. 771

• Court: Ohio Superior Court, Cincinnati
• Decided: July 20, 1923
• Docket: No. 58603
• Status: Published

Opinion

MARX, J.

Epitomized Opinion

Breen sued the Dow Drug Company for damages Éloss of sight, which he claimed was due to the ligence of the Drug Company in selling him wood ihol in place of grain alcohol, for internal use. In its answer the Drug Company denied the charges and also set up the fact that an attempted purchase of grain alcohol at that time was illegal and that the plaintiff could not claim damages as a result of his own unlawful act. During the trial the court admitted evidence of certain Texas doctors as- to what plaintiff said to them was the cause of his blindness. Previous to the introduction of this evidence the plaintiff had testified as to what conversations he had had with these doctors. The evidence was in dispute as to where the plaintiff had procured the wood alcohol. The jury returned a rerdict for the defendant, whereupon plaintiff prosecuted error. In sustaining the judgment of the ower'court, the Court of Appeals held:

1.Where plaintiff sought to purchase grain alco-lol from a drug store without a prescription, after he enactment of the Prohibition Law, but claims to cave received wood alcohol in response to his re-vest, no illegal act was committed so as to bar his :laim for damages for blindness caused by drinking >ueh wood alcohol.

2.The sale of wood alcohol to a purchaser re-vesting grain alcohol without clearly informing iuch purchaser of such fact, is negligence as a mater of law, and if blindness results from drinking ;uch wood alcohol, plaintiff is entitled to recover.

3.Where the plaintiff voluntarily offers himself is a witness and testifies upon cross-examination vithout objection to communications made to his ihysicians concerning the facts as to how he ob-ained the wood alcohol which caused his glindness, uch testimony by the plaintiff without objection onstitutes a waiver of any privileged communica-ions and the physicians may, thereafter, be re-[uired by the defendant to testify upon the same ubject.