MacHlitt v. Myers

155 N.E. 248, 23 Ohio App. 160, 5 Ohio Law. Abs. 279, 1926 Ohio App. LEXIS 335

• Court: Ohio Court of Appeals
• Decided: November 29, 1926
• Status: Published

Opinion

RICHARDS, P. J.

This action was brought against Myers, a retail druggist, in the Lucas Common Pleas to recover damages resulting from the use of an improper drug, which they claimed was furnished when arnica was ordered! The trial judge directed a verdict for Myers et al, and error was prosecuted to reverse this decision.

The evidence disclosed that Mrs. Machlitt had sprained her ankle and upon application of the arnica thereto' she suffered great pain, etc. An analyzed sample showed the arnica not to be according to specifications. The druggist defended upon the ground that he had purchased same from a reputable wholesale druggist and the drug sold was exactly the same that was ordered. The Court of Appeals held:

1. The bill of exceptions contains some evidence tending to sustain all the essential aver-ments of the petition, and it was therefore sufficient to carry the case to the jury and the trial judge was in error in directing the verdict. Edelstein v. Cook, 108 OS. 346.

2. During the trial evidence was introduced to show that arnica would affect a tender skin. Mrs. Machlitt testified that she had purchased another bottle of arnica from Myers, and that same had no injurious effect. This testimony was excluded and this court is of the opinion that it should have been admitted, the weight of such testimony being for the jury.

Judgment reversed.

(Culbert & Williams, JJ„ concur.)