Campbell v. Brown

Citations

• 85 Kan. 527
• 117 P. 1010
• 1911 Kan. LEXIS 108

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Chemical Analysis — Statement to Chemist — Hearsay and Incompetent. In an action by a widow to recover damages for the death of her husband caused by the alleged negligent sale by a druggist to him of wood alcohol, which he mistook for grain alcohol and drank, causing his death, the stomach of the deceased and a sample of the liquid were sent for examination and analysis to witnesses who were permitted to testify as to statements made by the persons delivering such stomach and sample as to whence they came. Held, hearsay and incompetent. But as other and competent evidence sufficiently showed their identity and unchanged condition, such hearsay was not materially prejudicial.</p> <p>2. - Jury are Judges of Credibility' of Witnesses. The jury found that the deceased purchased or had no other liquor on the occasion in question, which finding was contrary to the undisputed evidence of the only witness who testified on this point. Held, that the court did not err in refusing to set aside such finding, for the reason that the jury were the judges of the credibility of such witness and were not required to believe him.</p> <p>3. Negligence — Druggist Selling Unlabeled Poisons. It was immaterial whether or not the deceased applied for alcohol for use as a medicine intending to use it as a beverage, as this, if true, would be no justification or defense for selling wood alcohol unlabeled.</p> <p>4. - The pharmacy act (Gen. Stat. 1909, §§8095-8112) does not by legislative construction or repeal of section 260 of the crimes act (Gen. Stat. 1909, § 2763) render it lawful for one, whether a registered pharmacist or not, to sell wood alcohol without labeling it as a poison.</p> <p>•5. Verdict — Not a “Quotient” Verdict. When instead of discussing the merits of the case each of the jurors marks down the amount he thinks the plaintiff should recover, and the amounts are added and the sum divided by twelve, and an amount materially les