
    No. 320
    MACHLITT v. MYERS et.
    Ohio Appeals, 6th Dist., Lucas Co.
    Decided Nov. 26, 1926
    465. ERROR — Where there is some evidence on every point of each averment of petition for damages it is error for court to direct a verdict.
    480. EVIDENCE — Where evidence is introduced showing that tender skin might be affected by application of arnica, it is error to exclude testimony showing that same party purchased more arnica from same place and same did not affect her skin, the weight of testimony is for the jury.
    First Publication of this Opinion
    Attorneys — Fritsche, Kruse & Winchester for Machlitt; W. H. McLellan, Jr., and George H. Lewis for Myers; all of Toledo.
   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.)  