Scherer v. Schlaberg

122 N.W. 1000, 18 N.D. 421, 1909 N.D. LEXIS 49

• Court: North Dakota Supreme Court
• Decided: September 30, 1909
• Status: Published

Opinions

Spalding, J.

The plaintiff, Jacob Scherer, and his wife, Anna Scherer, were on March 20, 1906, the parents of a female child named Frances one day less than three months old. As far as shown by the evidence the child was healthful up to the time of the illness hereinafter described. On Sunday, March 18, 1906, this daughter became unwell. Tuesday morning, the 20th, Dr. Taylor was called and gave directions for the treatment of the child. He called again in the afternoon, and gave Mrs. Scherer a prescription on the drug store of the defendants. The doctor told the mother to send the prescription to the drug store, and that the medicine it called for would be in the form of powders, and to give one powder to the child every three hours. 'The husband was not present when these directions were given.. The prescription was sent to the drug store about 5 o’clock by Stella Brady, who gave it to one of the druggists in the store, and received in return a claim check. She left the drug store, and on her return -in a short time the same person to, whom she gave the prescription delivered to her the medicine. She carried it to the plaintiff’s residence, and was directed by the mother to place it on a writing desk, which she did. It was allowed to remain there until the return of the father about 6 :30 p. m., when he and the mother examined it, and commented on its being in a bottle and' a liquid, instead of in powders, as the doctor had stated it would be. The mother told the plaintiff that the doctor said it would be in powders, and his directions. She could not read English. The plaintiff could. He read, the label on the bottle and the directions. The name of some person was written on the label. He testifies that he could read the name “Rose,” but that the other name was blurred and could not be read; that he thought that .was the name of the medicine. In fact the -name “Rose Clark” was distinctly written on the label before the directions. The directions which he read were to give one teaspoonful every two hours until relieved. The liquid in the bottle contained two grains of morphine, or about one-eighth of a grain to a teaspoonful. After discussing the difference between the medicine received and the statement of the doctor, plaintiff and wife, notwithstanding the lack of opportunity for the doctor to change the prescription, concluded that the doctor had changed his mind and. put up a liquid. The father did not administer the medicine,, but was present when the mother, with the assistance of another lady, did administer it. On attempting to give it undiluted, the child appeared to dislike it and suffer from the contact of the medicine with her mouth; and, although the directions said nothing about diluting, the mother reduced it with water and administered about a teaspoonful. Fifteen or 20 minutes after it was given the child appeared to suffer, and without entering into details of the testimony of the different witnesses, it suffices to say that the child was evidently in distress. The father waited until a few -minutes before time for the second dose, when, suspecting that the changed condition of the child for the worse was caused by a mistake in the medicine, he went to a neighbor’s about two blocks away and telephoned the doctor. Fie left without indicating to the mother his suspicion regarding the medicine, or cautioning her about giving another dose before he had communicated with the doctor. The doctor informed him that it was the wrong medicine. He returned in haste to his home and found that the second dose had just been given. The doctor arrived shortly, examined the child, and found a slight dilation of the pupils of the eyes. He testifies to no other symptom of morphine poisoning. The testimony of the different physicians indicates that if the digestive organs were in normal condition, the morphine would have, been absorbed into the system in a few minutes, but that when the digestive system is out of order morphine may remain a considerable time in the stomach. The doctor washed out the stomach with permanganate of potash, for the purpose of relieving it from any morphine which it retained. He testifies that the effect of a solution of permanganate of potash used in this manner is to decompose and render morphine inert and absolutely harmless. He also gave the child a hypodermic of atropine to counteract the effect of "any morphine which might have been absorbed. This was done about 9 o’clock in the evening. He remained with the child until about 1 o’clock in the morning, and testifies that he made use of tests to determine whether there were any remaining effects of the morphine present, and that it is his positive judgment that when he left the child was free from any ill effect which she might have had from the morphine. She was lying perfectly'still when he left, but the parents testified that she subsequently had several convulsions. The doctor called again the next forenoon, and found it still a very sick child, and it died about \ noon Wednesday. This action was brought under the provisions of j the statute giving the father the right to maintain an action for | death of his child by wrongful act, and it is for his benefit, he •.being the sole heir at law.

At the close of the case the defendants moved for the direction of a verdict in their favor on the following grounds: (1) That the evidence fails to show that the infant Frances Scherer died from the effects of administering, the liquid called for by the prescription Exhibit C; (2) that the evidence fails to show that the defendants, or their agents, were guilty of any act which, or the result of which, was the proximate cause of the death of the infant, Frances Scherer; (3) that there is no evidence in the case upon which the jury can base a deliberate judgment that the death of the infant, Frances Scherer, was caused by the administering of the liquid called for by Exhibit C; that such verdict, if rendered, would be necessarily based on mere surmise, conjecture, and speculation; (4) that the evidence fails to show any facts from which, or upon which, the jury can base any damages; (5) that there is no evidence in this case which can be used by the jury as a measure of pecuniary aid which the father might reasonably expect from the infant Frances Scherer, 'had she lived; that damages, if awarded, could not be the result of judicial determination upon the evidence, but would be the result of the uncontrolled discretion of the jury; (6) that the evidence discloses that Anna Scherer, the mother of the infant, Frances Scherer, was, in exercising the care and custody of said Frances Scherer, acting as the authorized agent of said father, Jacob Scherer; that the negligence of either th.e father, Jacob Scherer, or the mother, Anna Scherer, in exercising such care and custody contributing to the death of such infant, would bar a recovery, and that the evidence discloses affirmatively such negligence on the part of both Jacob Scherer and Anna Scherer contributing to the death of said infant, if such death was caused by the administering of the liquid claimed, as in law constitutes contributory negligence and bars a recovery; (7) that the evidence fails to show facts sufficient to constitute a cause of action against the defendants. The motion was granted, and the .plaintiff duly excepted. From the judgment entered dismissing the ¡action, and for costs against the plaintiff, this appeal is prosecuted. We have not stated the substance of all the evidence, and we cannot do so and confine this opinion within proper limits. It will simplify the intelligent consideration of the case to consider some of the reasons given by the respondent for sustain^ing the judgment, rather than to pursue the usual course of discussing the errors assigned by appellant, as appellant’s assignments of error are in general terms.

1. It is contended that there is no evidence which could have been considered by the jury to furnish a measure of pecuniary injury which the father suffered from the death of the child. The rule regarding the measure of damages recoverable by the father for the death by wrongful act of a minor child seems to be the probable value of the services of the child during minority, considering the cost of support and maintenance during the early and helpless part of its life. Haug v. Railway Company, 8 N. D. 23, 77 N. W. 97, 42 L. R. A. 664, 73 Am. St. Rep. 727; Morgan v. S. P. Company, 95 Cal. 510, 30 Pac. 603, 17 L. R. A. 71, 29 Am. St. Rep. 143; Little R. & F. S. Ry. Co. v. Barker, 33 Ark. 350, 34 Am. Rep. 44; Smith v. C. M. & St. P. Ry. Co., 6 S. D. 583, 62 N. W. 967, 28 L. R. A. 573; Sutherland on Damages, § 1273. No evidence is presented in the record showing the age of the father or the expectancy of his life. This has been held to be fatal to recovery by the plaintiff; but, as we view the law, it is an immaterial omission in this instance. It was a female child only three months old. Dr. Taylor testified that it was dangerously ill when he called to see it, suffering from uremic poisoning. It is obvious that, with a female child three months old, dangerously ill, the pecuniary value of its life during its minority is wholly problematical and speculative. It is conceded that in actions of this nature juries are not confined to the consideration of the evidence alone, as they are in many other kinds of actions, but they may exercise a much wider latitude in applying their own knowledge and experience than would be proper in most other cases, but it is apparent that no evidence, no knowledge, or experience of the jurors could justify them in saying that this child would have lived had. no mistake been made in the prescription, or that in case of its continued life its earning capacity would have exceeded the expend-, itures necessary in its maintenance and education. On the contrary, the experience of mankind in civilized communities warrants the conclusion that its net earning capacity would most likely be a negative quantity. When it iis impossible to arrive at a verdict except by speculation or-surmise, guesswork, or conjecture, the case should be taken from the jury. Koslowski v. Thayer, 66 Minn. 150, 68 N. W. 973; Moore v. Gt. N. Ry. Co., 67 Minn. 394, 69 N. W. 1103; Peterson v. C., M. & St. P. Ry. Co., 19 S. D. 122, 102 N. W. 595; Truax v. M., St. P. & S. M. Ry. Co., 89 Minn. 143, 94 N. W. 440; Harrison v. C., M. & St. P. Ry. Co., 6 S. D. 100, 60 N. W. 405; Sherman v. Lumber Co., 77 Wis. 22, 45 N. W. 1079; Wheelan v. C., M. & St. P Ry. Co., 85 Iowa, 167, 52 N. W. 119; Balding v. Andrews, 12 N. D. 267, 96 N. W. 305; Meehan v. G. N. Ry. Co., 13 N. D. 432, 101 N. W. 183; Wadsworth v. Boston El. Ry. Co., 182 Mass. 572, 66 N. E. 421; Baltimore & O. R. Co. v. State, 101 Md. 359. 61 Atl. 189, 192; Standard Oil Co. v. Murray, 119 Fed. 572, 576, 57 C. C. A. 1; Atchison, T. & S. F. R. Co. v. Aderhold, 58 Kan 293, 49 Pac. 83; Ruppert v. Brooklyn Heights R. Co., 154 N. Y. 90, 47 N. E. 971; Laidlaw v. Sage, 158 N. Y. 73, 52 N. E. 679, 689, 44 L. R. A. 216; Byrd v. So. Ex. Co., 139 N. C. 273, 51 S. E. 851; Stumpf v. Delaware, L. &. W. R. Co. (N. J. Sup.) 69 Atl. 207. Most of the American courts sustain the doctrine of nominal damages', although this doctrine is denied by the English authorities. We shall not determine which line of authorities is applicable in this state nor whether nominal damages would be proper in a case of this character, or similar cases.

2. It is next contended that the judgment should be sustained because any verdict rendered for plaintiff on the evidence as to the cause of the death of the child must have been purely speculative and conjectural Dr. Taylor testifies that the child was dangerously ill with uremic poisoning. It is shown that it passed no urine for 24 hours, that its bowels did not act, and, without detailing the symptoms testified to both by the parents and others, as well as the doctor, that, with the exception of the slight contraction of the pupil, they indicated uremic poisoning, and not poison from morphine. The testimony of the physicians is in the main uniform on this question, and as to the cause of the death, although Dr. Engstad, a witness for the plaintiff, testified when first on the stand that he did not think the child would die from one dose of the morphine solution; that it would depend upon the measures taken to counteract the poison, and it would be very hard to say whether it would die from the administration of two doses, and that it was a question very difficult to answer; that he could not give a direct answer. And in answer to a hypothetical question, which did not state all the material facts and circumstances as testified to 'by Dr. Taylor showing the condition of the child, he stated that the giving of morphine to the child, .“had at least a predisposing cause, if not a direct cause.” He explained what he meant by “predisposing cause” by an illustration that, when a person accustomed to partake heavily of whiskey contracted pneumonia, he would, in all probability, die ; that the direct cause of his death would be pneumonia, but that the predisposing cause would be whiskey. He also testified that there were cases where he knew morphine had been retained in the stomach for two or three hours, or more, without being absorbed to any great extent, and that he had had cases, when morphine used to be given by the mouth, in which he did not get action from the morphine for an hour or two. Drs. Grassick, Healy, and Wheeler corroborated Dr. Taylor in his statement that the child died of uremic poisoning. We are of the opinion, after considering all the evidence submitted, that the trial court was justified in taking the case from the jury. The answer of Dr. Engstad, based upon the hypothetical question which failed to state the most marked symptoms of the child as testified to by Dr. Taylor, at most constituted but a scintilla of evidence in conflict with that given by the other physicians, and any verdict rendered for the plaintiff would have been based upon pure conjecture and guesswork. No jury could say what caused the child’s death. As to this the authorities previously cited are applicable.

3. It is urged in support of the judgment of the trial court that the father was guilty of contributory negligence, and that for this reason he was not entitled to recover. It is perfectly clear that, notwithstanding the inexcusable mistake or negligence of the defendant, no injury would have resulted except for the carelessness, or lack of care, of the parents in administering medicine which they knew differed in character, in dose,.and in the frequency of the dose from that prescribed by the physician in attendance. The doctor plainly told the mother that the prescription would be in the form of a powder, to be given once in three hours. The child was dangerously sick. She did not send to the drug store for some time after the doctor left. A liquid was returned, the bottle inscribed with the name of the party for whom it was put up. The directions materially differed from those given by Dr. Taylor. All this was known by the father who, while not assisting in administering .it, was present when the first dose was given, and did nothing to prevent its administration. After the change in the condition of the child, he suspected something wrong with the medicine, and, within a few minutes of the time for the second dose, left his home without suggesting that another dose should not be given until he consulted with the doctor. He was absent a considerable length of time, and on return found that the second dose had been given. It is argued, however, that they discussed the change in the medicine, and concluded that the doctor 'had changed his mind and put up a different remedy. It is apparent that this conclusion is a mere afterthought, and could have had no foundation, because the doctor w.as not seen in the meantime. The prescription was left with the mother. The preson who took it to the drug store delivered it to the druggist, not to the doctor. How it was possible for the doctor to have made the change is not suggested. A telephone was within such distance that they could have informed themselves as to the cause of the change of medicine without delay or difficulty. They neglected to do so. The fact that it was an infant three months old, very sick, and, as they must have known, by reason of its age and other conditions, susceptible to very small quantities of any medicine, charged them with a high degree of care. Had it been a grown person who was ill, their duties would have been different. A dose for one grown person would ordinarily approximate a dose for another grown person, but not so as to a grown person and an infant three months old, as they must have known. Whatever the results may have been from the administration of the morphine solution, it is clear to us that, notwithstanding the gross negligence of the defendants, no- ill results could have occurred except for the negligence of the father in permitting the administration, not only of the first, but also of the second dose, and that his negligence was the proximate cause of any injury to the child resulting from the action of the defendants, if any injury did result, and that therefore he cannot recover.

4. It is urged by appellant in this connection that negligence of the father or mother is imputed negligencé, and that to sustain the' judgment on the ground of contributory negligence this court must adopt the doctrine of imputed negligence; that is, that if the father was negligent, his negligence must be imputed to the child, on the theory that contributory negligence of the child must be shown to support the defense of contributory negligence against the father, and that if the contributory negligence of the father would be a defense, the contributory negligence in this case was that of the mother, and can be imputed neither to. the father nor to the deceased. As we view the law and the facts, .the question of imputed negligence is not in this case in any .degree whatever. The father knew all the facts, and was present when the medicine was given, and acquiesced in its being administered, and the negligence was his. He is the beneficiary, and the contributory negligence of the beneficiary defeats the action. The remedy applicable in this case, and in cases of this nature, is not for the benefit of the estate of the deceased, nor is it sought in behalf .of the deceased. It is a remedy given for the heir at law who suffers injury 'by the wrongful death, and is for the sole 'benefit of such heir at law. Proceeds of any recovery go to him, in this case the father, and not to the estate of the deceased. And to say that he shall be allowed to recover, when he himself is guilty of contributory negligence, is to permit him to reap the benefit of his own wrong doing. Atlantic Ry. Co. v. Gravitt, 93 Ga. 369, 20 S. E. 550, 26 L. R. A. 553, 44 Am. St. Rep. 145; Tucker v. Draper, 62 Neb. 66, 86 N. W. 917, 54 L. R. A. 321; Westerberg v. K. C., etc., Ry. Co., 142 Pa, 471, 21 Atl. 878, 24 Am. St. Rep. 510; Westbrook, Mobile & O. R. Co., 66 Miss. 560, 6 South. 321, 14 Am. St. Rep. 587; Ploof v. Burlington Traction Co., 70 Vt. 509, 41 Atl. 1017, 43 L. R. A. 108; Bamberger v. Citizens’ St. Ry. Co., 95 Tenn. 18, 31 S. W. 163, 28 L. R. A. 486, 49 Am. St. Rep. 909; Smith v. Hestonville, M. & T. Co., 92 Pa. 450, 37 Am. Rep. 707; Johnson v. Reading & C. Ry. Co., 160 Pa. 647, 28 Atl. 1001, 40 Am. St. Rep. 752; City of Pekin v. McMahon, 154 Ill. 141, 39 N. E. 484, 27 L. R. A. 206, 45 Am. St. Rep. 114; W. U. Tel. Co. v. Hoffman, 80 Tex. 420 15 S. W. 1048, 26 Am. St. Rep. 759. In the Gravitt and Ploof Cases, supra, will be found very full citations of authorities and discussions of the law applicable to the case at bar.

The circumstances surrounding this case at the same time excite the profound sympathy of the court for the father and mother, and a 'feeling that such gross carelessness as that of defendants, though harmless in its results, ought to be followed by appropriate punishment, but the decision of courts would justly cease to deserve the respect which is accorded them if they permitted their sympathies or their indignation to serve as a guiding motive in the determination of questions of law.

As we find no error in the action of the trial court, its order is affirmed.

Fisk, J., disqualified, and C. A. Pollock, Judge of the Third Judicial District sat in his stead. Carmody J., and Pollock, District Judge, concurring. Morgan, C. J. concurs in the result without considering the questions of damages.