Thomas
and wife against
6 N.Y. 397 (1852)
The facts proved were briefly
these: Mrs. Thomas being in ill health, her physician prescribed for her a dose
of dandelion. Her husband purchased what was believed to be the medicine
prescribed, at the store of Dr. Foord, a physician
and druggist in Cazenovia,
A small quantity of the medicine
thus purchased was administered to Mrs. Thomas, on whom it produced very
alarming effects; such as coldness of the surface and extremities, feebleness
of circulation, spasms of the muscles, giddiness of the head, dilation of the
pupils of the eyes, and derangement of mind. She recovered however, after some
time, from its effects, although for a short time her life was thought to be in
great danger. The medicine administered was belladonna, and not dandelion.
The jar from which it was taken was labeled "1/2 lb. dandelion,
prepared "by A. Gilbert, No. 108, John-street, N. Y. Jar 8 oz."
It was sold for and believed by Dr. Foord to be the
extract of dandelion as labeled.
[**16] Dr. Foord
purchased the article as the extract of dandelion from Jas. S. Aspinwall, a druggist at New-York. Aspinwall
bought it of the defendant as extract of dandelion, believing it to be such.
The defendant was engaged at No. 108 John-street, New-York, in the manufacture
and sale of certain vegetable extracts for medicinal purposes, and in the [*406] purchase and sale of others. The extracts
manufactured by him were put up in jars for sale, and those which he purchased
were put up by him in like manner. The jars containing extracts manufactured by
himself and those containing extracts purchased by him
from others, were labeled alike. Both were labeled like the jar in question, as
"prepared by A. Gilbert." Gilbert was a person employed by the
defendant at a salary, as an assistant in his business. The jars were labeled
in Gilbert's name because he had been previously engaged in the same business
on his own account at No. 108 John-street, and probably because Gilbert's
labels rendered the articles more salable. The extract contained in the jar
sold to Aspinwall, and by him to Foord,
was not manufactured by the defendant, but was purchased by him from another
manufacturer or dealer. [**17] The extract of dandelion and the extract of
belladonna resemble each other in color, consistence, smell and taste; but may
on careful examination be distinguished the one from the other by those who are
well acquainted with these articles. Gilbert's labels were paid for by
The defendants' counsel moved for
a nonsuit on the following grounds:
1. That the action could not be
sustained, as the defendant was the remote vendor of the article in question:
and there was no connection, transaction or privity
between him and the plaintiffs, or either of them.
2. That this action sought to
charge the defendant with the consequences of the negligence of Aspinwall and Foord.
3. That the plaintiffs were liable
to, and chargeable with the negligence of Aspinwall
and Ford, and therefore could not maintain this action.
4. That according to the testimony
Foord was chargeable with negligence, and that the
plaintiffs therefore could not sustain this suit against the defendant: if they
could sustain a suit at all it would be against Foord
only.
5. That this suit being brought
for the benefit of the wife,
[*407] and alleging
[**18] her as the meritorious cause of
action, cannot be sustained.
6. That there was not sufficient
evidence of negligence in the defendant to go to the jury.
The judge overruled the motion for
a nonsuit, and the defendant's counsel excepted.
The judge among other things
charged the jury, that if they should find from the evidence that either Aspinwall or Foord was guilty of
negligence in vending as and for dandelion, the extract taken by Mrs. Thomas,
or that the plaintiff Thomas, or those who administered it to Mrs. Thomas, were
chargeable with negligence in administering it, the plaintiffs were not
entitled to recover; but if they were free from negligence, and if the
defendant Winchester was guilty of negligence in putting up and vending the
extracts in question, the plaintiffs were entitled to recover, provided the
extract administered to Mrs. Thomas was the same which was put up by the
defendant and sold by him to Aspinwall and by Aspinwall to Foord. That if they
should find the defendant liable, the plaintiffs in this action were entitled
to recover damages only for the personal injury and suffering of the wife, and
not for loss of service, medical treatment or expense to the husband, [**19]
and that the recovery should be confined to the actual damages suffered
by the wife.
The action was properly brought in
the name of the husband and wife for the personal injury and suffering of the
wife; and the case was left to the jury with the proper directions on that
point. (1 Chitty on Pleadings, 62, ed. of
1828.)
The case depends on the first
point taken by the defendant on his motion for a nonsuit;
and the question is, whether the defendant, being a remote vendor of the
medicine, and there being no privity or connection
between him and the plaintiffs, the action can be maintained.
If, in labeling a poisonous drug
with the name of a harmless medicine, for public market, no duty was violated
by the defendant, excepting that which he owed to Aspinwall,
his immediate vendee, in virtue of his contract of sale, this action
cannot [*408] be maintained. If A. build a wagon and sell
it to B., who sells it to C., and C. hires it to D., who in consequence of the
gross negligence of A. in building the wagon is overturned and injured, D.
cannot recover damages against A., the builder. A.'s
obligation to build the wagon faithfully, arises
solely out of his contract with B.
[**20] The public have nothing to
do with it. Misfortune to third persons, not parties to the contract, would not
be a natural and necessary consequence of the builder's negligence; and such
negligence is not an act imminently dangerous to human life.
So, for the same reason, if a
horse be defectively shod by a smith, and a person
hiring the horse from the owner is thrown and injured in consequence of the
smith's negligence in shoeing; the smith is not liable for the injury. The
smith's duty in such case grows exclusively out of his contract with the owner
of the horse; it was a duty which the smith owed to him alone, and to no one
else. And although the injury to the rider may have happened in consequence of
the negligence of the smith, the latter was not bound, either by his contract
or by any considerations of public policy or safety, to respond for his breach
of duty to any one except the person he contracted with.
This was the ground on which the
case of Winterbottom v. Wright, (10 Mees. & Welsb.
109,) was decided. A contracted with the postmaster general to provide a coach
to convey the mail bags along a certain line of road, and B. and others, also
contracted to horse [**21] the coach
along the same line. B. and his co-contractors hired C., who was the plaintiff,
to drive the coach. The coach, in consequence of some latent defect, broke
down; the plaintiff was thrown from his seat and lamed. It was held that C.
could not maintain an action against A. for the injury thus sustained. The
reason of the decision is best stated by Baron Rolfe.
A.'s duty to keep the coach in good condition, was a duty to the postmaster general, with whom
he made his contract, and not a duty to the driver employed by the owners of
the horses.
But the case in hand stands on a
different ground. The defendant [*409]
was a dealer in poisonous drugs. Gilbert was his agent in preparing them
for market. The death or great bodily harm of some person was the natural and
almost inevitable consequence of the sale of belladonna by means of the false
label.
Gilbert, the defendant's agent, would
have been punishable for manslaughter if Mrs. Thomas had died in consequence of
taking the falsely labeled medicine. Every man who, by his culpable negligence,
causes the death of another, although without intent to kill, is guilty of
manslaughter. (2 R. S. 662, § 19.) A chemist who negligently [**22] sells laudanum in a
phial labeled as paregoric, and thereby causes the death of a person to whom it
is administered, is guilty of manslaughter. (Tessymond's case, 1 Lewin's
Crown Cases, 169.) "So highly does the law value "human
life, that it admits of no justification wherever life has "been lost and
the carelessness or negligence of one person has "contributed to the death
of another. (
In respect to the wrongful and
criminal character of the negligence complained of, this case differs widely
from those put by the defendant's counsel. No such imminent danger existed in
those cases. In the present case the sale of the poisonous article was made to
a dealer in drugs, and not to a consumer.
[**23] The injury therefore was
not likely to fall on him, or on his vendee who was also a dealer; but much
more likely to be visited on a remote purchaser, as actually happened. The
defendant's negligence put human life in imminent danger. Can it be said that
there was no duty on the part of the defendant, to avoid the creation of that
danger by the exercise of greater caution? or that the
exercise of that caution was a duty only to his immediate [*410]
vendee, whose life was not endangered? The defendant's duty arose out of
the nature of his business and the danger to others incident to its
mismanagement. Nothing but mischief like that which actually happened could
have been expected from sending the poison falsely labeled into the market; and
the defendant is justly responsible for the probable consequences of the act.
The duty of exercising caution in this respect did not arise out of the
defendant's contract of sale to Aspinwall. The wrong
done by the defendant was in putting the poison, mislabeled, into the hands of Aspinwall as an article of merchandise to be sold and
afterwards used as the extract of dandelion, by some person then
unknown. The owner of a horse and cart who leaves [**24] them unattended in the street is
liable for any damage which may result from his negligence. (Lynch v. Nurdin, 1 Ad. & Ellis, N. S. 29; Illidge v. Goodwin, 5 Car. & Payne,
190.) The owner of a loaded gun who puts it into the
hands of a child by whose indiscretion it is discharged, is liable for the
damage occasioned by the discharge. (5 Maule & Sel. 198.) The defendant's contract of sale to Aspinwall does not excuse the wrong done to the plaintiffs.
It was a part of the means by which the wrong was effected.
The plaintiffs' injury and their remedy would have stood on the same principle,
if the defendant had given the belladonna to Dr. Foord
without price, or if he had put it in his shop without his knowledge, under
circumstances which would probably have led to its sale on the faith of the
label.
In Longmeid
v. Holliday, (6 Law and Eq. Rep. 562,)
the distinction is recognized between an act of negligence imminently dangerous
to the lives of others, and one that is not so. In the former case, the party
guilty of the negligence is liable to the party injured, whether there be a
contract between them or not; in the latter, the negligent party is [**25] liable only to the
party with whom he contracted, and on the ground that negligence is a breach of
the contract.
The defendant, on the trial,
insisted that Aspinwall and Foord
were guilty of negligence in selling the article in question [*411]
for what it was represented to be in the label; and that the suit, if it
could be sustained at all, should have been brought against Foord.
The judge charged the jury that if they, or either of them, were guilty of
negligence in selling the belladonna for dandelion, the verdict must be for the
defendant; and left the question of their negligence to the jury, who found on
that point for the plaintiff. If the case really depended on the point thus
raised, the question was properly left to the jury. But I think it did not. The
defendant, by affixing the label to the jar, represented its contents to be
dandelion; and to have been "prepared" by his agent Gilbert. The word
'prepared' on the label, must be understood to mean that the article was
manufactured by him, or that it had passed through some process under his
hands, which would give him personal knowledge of its true name and quality.
Whether Foord was justified in selling the article
[**26] upon the faith of the defendant's
label, would have been an open question in an action by the plaintiffs against
him, and I wish to be understood as giving no opinion on that point. But it
seems to me to be clear that the defendant cannot, in this case, set up as a
defense, that Foord sold the contents of the jar as
and for what the defendant represented it to be. The label conveyed the idea
distinctly to Foord that the contents of the jar was
the extract of dandelion; and that the defendant knew it to be such. So far as
the defendant is concerned, Foord was under no
obligation to test the truth of the representation. The charge of the judge in
submitting to the jury the question in relation to the negligence of Foord and Aspinwall, cannot be complained of by the defendant.
Gardiner, J. concurred in affirming the judgment, on
the ground that selling the belladonna without a label indicating that it was a
poison, was declared a misdemeanor by statute; (2 R. S. 694,
§ 23;) but expressed no opinion upon the
question whether, independent of the statute, the defendant would have been
liable to these plaintiffs.
[*412]
Gridley, J. was not present when the [**27] cause was decided. All the other
members of the court concurred in the opinion delivered by Ch. J. Ruggles.
Judgment affirmed.