Murphy v. Boericke and Runyon Co.

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LANGDON, P. J.

This is an appeal by the defendants from a judgment against them for three thousand dollars in an action brought by the plaintiffs, who are husband and wife, to recover damages alleged to have been caused by the defendants by reason of the sale by them to Mrs. Murphy of certain medicine, which the jury has found greatly injured her health.

Appellants assert that the evidence is not sufficient to justify the verdict against them. We are relieved, however, of the task of discussing this contention and stating, in detail, the evidence appearing in the record, because wo have come to the conclusion that, aside from the soundness of this position, the judgment must be reversed for manifest error in the admission of testimony with reference to events which occurred more than one year before the bringing of the action and which were barred, therefore, by the provisions of section 340 of the Code of Civil Procedure. We shall state herein only such portion of the evidence as is necessary to explain the situation with reference to this testimony.

On May 15, 1921, between 8 and 9 o’clock in the morning, the plaintiff John H. Murphy went to the drugstore of the defendant Boericke and Runyon Company in San Francisco, California, to purchase for his wife a medicine to be used as a spring tonic. Mr. Murphy asked for “Rhus-Tox of the 30th” and a bottle of sulphur. It appears that defendant manufactured no preparation known as “Rhus-Tox of the 30th,” but no explanation of this was made to Murphy, and the person in charge of the drugstore sold him two bottles of medicine, one marked “Rhus-Tox 3X” and the other marked “Sulphur.” Mr. Murphy delivered this medicine to his wife. She used it as directed for a few days. Both plaintiffs testified that the Rhus-Tox so purchased did not appear to be in good condition; that the pellets were lumped together so that it was difficult to determine the dosage, and that the medicine appeared to be stale and old. Because of these facts, Mrs. Murphy discontinued the use of the medicine after a few days and on June 11, 1921, she took the medicine back to the drugstore and saw Mr. Breckenfeld, a registered pharmacist employed by defendant company. She explained her objection, to the medicine which had been sold to her husband. According

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