Marx v. Schultz

1. Aepeal and Error — Assignments of Error — Sufficiency. An assignment that “the court erred in directing á verdict in favor of the defendants,” where defendants offered no testimony, and there could he no possible uncertainty as to what was meant by the assignment, helé, sufficiently specific. 2. Negligence — Death—Poisons—Inference—Question for Jury. In an action by plaintiff for the wrongful death of his wife, claimed to have been caused by an overdose of arsenic due to the negligence of defendants, the owners of a drug store, in substituting the word “teaspoonful” in the label on the bottle, for the words “three drops” in the doctor’s prescription, the testimony of a reputable physician, in answer to a hypothetical question stating the facts and describing her symptoms thereafter, that such symptoms are caused by an excessive dóse of arsenic and probably would result in her death, helé, sufficient to warrant the drawing of an' inference favorable to plaintiff sufficient to warrant presenting the disputed question of fact as to the cause of her death to the jury. 3. Appeal and Error — Weight of Evidence — Jury Question. The weight of the testimony is primarily for the jury. 4. Trial — Examination of Witnesses — Discretion of Court. Where it was almost obligatory upon plaintiff to put the attending physician upon the stand in order to make his case, the court below should have been more liberal in allowing plaintiff to examine him as to certain incidents between them in order to show that the doctor had become adverse and unfriendly to plaintiff’s cause.

Error to Wayne; Gage (William G.), J., presiding. Case by Richard Marx against George M. Schultz and others, copartners as the Peninsular Drug Company, for the negligent killing of plaintiff’s wife. Judgment for defendants on a directed verdict. Plaintiff brings error. This action was brought by Richard Marx for $25,-000 damages alleged to have been suffered by him on account of the death of his wife, Lydia Marx, caused, according to his claim, through the negligence of the above named defendants, or some of them. It appears that on November 30, 1915, Lydia Marx was being treated by Dr. Francis McNamara for a skin rash, his treatments having extended back to about the middle of that month, although he had been conversant with her condition for five years and had been one of several physicians in attendance on her from time to time during that period. It is disputed in the record as to the exact nature of the ailments that she had previously suffered, her husband having testified that her previous condition was “fair” and that with the exception of an operation for a “pus case in the ‘abdomen’ ” and a few minor ailments, her health had been that of an ordinary woman. This assertion is denied by Dr. McNamara, whose testimony is as follows: “Q. How long, then, if that is your answer, had this patient been suffering from Bright’s disease? “A. I think she was suffering for about four years. She had an infection about four years ago and had a very severe operation. I think — it is my opinion that the Bright’s disease dates from that time because Bright’s disease is simply an infection of the kidneys brought about by some bacterial poisoning.” Dr. McNamara was the only one of the doctors who had previously treated Mrs. Marx who was called by the plaintiff. His diagnosis corresponds to that of Dr. Brandt, the county physician, who stated in his testimony that the post mortem, examination of the organs of Mrs. Marx which he made soon after her death was the basis for his opinion that she had died of chronic Bright’s disease of from one to ten years standing. Other similar and relative evidence, indicative of the dispute over the condition of the health of the deceased prior to November 30, 1915, was introduced. On that date, however, a consultation was held in plaintiff’s presence between Dr. McNamara and Dr. Varney, a specialist on skin diseases, and the latter then told the plaintiff that his wife was suffering from an eruption of the nerves. It was decided, as a result of this consultation, to prescribe Fowler’s solution of arsenic, and Dr. McNamara thereupon wrote out a prescription directing the taking of three drops of this substance in water after meals, three times daily. This prescription was handed to the plaintiff, who sent it to a drug store at 563 Dix avenue, in Detroit, this establishment being the property of some of the defendants. There is some confusion in the record as to who were the actual owners of the drug store at the time the prescription was filled, but this question did not become material because of the directed verdict for the defendants. It is clear, however, that the prescription was filled at this drug store, and that it was delivered at the Marx home late that afternoon by one of the clerks. The bottle containing it bore a label similar to those pasted on ordinary druggist’s bottles but there was nothing to indicate the poisonous nature of the liquid. On the label appeared Dr. McNamara’s name, followed by the direction: "Teaspoonful in water after meals three times daily. 11-30-15.” Upon receipt of this medicine, Mrs. Marx was given a teaspoonful, in accordance with, directions. Immediately thereafter she appeared to be in great agony and threw herself from side to side of the bed, complained of pains in her stomach and tried to vomit. She soon became unable to speak distinctly. Plaintiff returned to his home about five o’clock, and at that time the face and body of Mrs. Marx were swollen and she could answer the plaintiff’s questions only indistinctly and with difficulty. Plaintiff immediately tried to get Dr. McNamara by telephone, but owing to the doctor’s absence, Was not able to get him until about 12 o’clock midnight, when the doctor went to plaintiff’s, home. The record shows that when the doctor arrived he was very much astonished to discover Mrs. Marx’s condition, but when shown the bottle, he immediately scratched out the word “teaspoonful” and substituted • “three drops” and administered an antidote for the overdose that she had taken. He thereupon left the house, stating in effect that he wished to go to the drug store to see his written prescription. In his testimony Dr. McNamara states that he found this just as he had written it — “three drops after every meal.” This is undisputed, which seems to indicate conclusively that the mistake in the directions on the label was due to the negligence of someone at the drug store. Thereafter, Dr. McNamara removed the bottle containing the arsenical solution, without saying any-, thing to the plaintiff about it. The latter missed it, and he called at the doctor’s office in regard to it. The • doctor admitted having it and offered it to the plaintiff, but plaintiff insisted that he return it, which he did. When it was returned, there was a label pasted over the original label, which stated in part: Directions, Poison. Fowler’s. Solution. .Lydia Marx suffered almost continuously from this time until the date of her death, February 7, 1916. Her condition is thus described by the nurse who took care of her: “I found her very sick and delirious part of the time — most of the time. Her mouth and throat were very sore, they was just a solid canker. She could not eat scarcely anything. She had no appetite. What we did give her was forced, of course; liquid, something very soft. And she was very nervous and had spells, she would jerk off the bed. They would go then, and then they would come on. I am not positive but I think in the evening she was worse that way. She seemed to be more delirious at night than she was during the day, and the bowels Were very bad. They were a slimy substance streaked with blood, the urine scant.” The above described condition seems to have continued until her death, whereupon the plaintiff brought this action, claiming that the overdose of Fowler’s solution had caused arsenical poisoning and Was the direct and proximate cause of her death. At the conclusion of the testimony for the plaintiff, counsel for defendant Schultz moved for a directed verdict, which motion was granted by the trial court, who, in addressing the jury, stated the following: “In this sort of cases it becomes necessary, in this and other cases like it, it becomes necessary for the plaintiff to prove by a preponderance of evidence, by the evidence of experts, those who know, what was the cause of the party’s death, that the party died from the administration of the medicine which it is alleged was administered to the deceased. * * * “I am satisfied, gentlemen of the jury, that the plaintiff has not shown by evidence which is necessary to establish his case, that this wife of the plaintiff in the case died from the effects of the overdose of this arsenical preparation which was administered to her out of this bottle in question and in my view it is not a case that should be submitted to the jury. * * * It is an interesting question as to who owned this drug store at that time, and that would have been a question which the judge would have felt it would be his duty to submit to you to determine on the evidence in the case as to who were the owners of this drug store and I would also have instructed you that whoever was the owner was responsible for any injury that occurred. But I direct you, gentlemen of the jury, to render a verdict of not guilty or no cause for action in this case.”