20 S.E.2d 208 | Ga. Ct. App. | 1942
A petition alleging that a defendant drug company sold petitioner's husband carbolic acid when it was obvious to any one that he was not capable of understanding the dangerous nature of the poison, and that the husband drank it and died, set forth a cause of action for damages.
The general and special demurrers of the defendant were overruled and it excepted.
The Code, § 42-701, provides: "No person shall furnish by retail, any poison enumerated in Schedules `A' and `B', as follows, to wit: . . Schedule `B.' . . Carbolic acid, . . without distinctly labeling the bottle, box, vessel, or paper in which said poison shall be contained, and also the outside wrapper or cover thereof, with the name of the article, the word `Poison,' and the name and place of business of him who furnishes the same; nor unless upon due inquiry it shall be found that the person to whom it shall be delivered shall be aware of its poisonous character, and shall represent that it is to be used for a legitimate purpose." § 42-9915 provides for a misdemeanor punishment for a violation of the foregoing section. The allegations of the petition are sufficient to allege a violation of § 42-701, although it is not specifically pleaded. Donaldson v. Great Atlantic PacificTea Co.,
The argument made by plaintiff in error is not that the petition does not allege negligence on the part of the plaintiff in error, but that the acts of the plaintiff in error were not the proximate cause of the death of petitioner's husband. It contends that the voluntary drunkenness of the deceased was the proximate cause of his death. This contention is not without merit and is not without some authority to support it. In Meyerv. King,
We think the fault with the Mississippi and Alabama cases, supra, is that they absolved the defendants by projecting the voluntary drunkenness of the deceaseds over and beyond the negligence of the defendants, when as a matter of fact that negligence was at an end at the time of the defendants' negligence, and this negligence of the deceaseds charged the defendants with knowledge that their acts might reasonably result in injury to the deceaseds or others. Of course no person is chargeable with unforseeable consequences. However, it seems to us that the conduct of a man who is staggering drunk is so unpredictable that one selling poison to him would be liable for whatever injury resulted. Plaintiff in error assumes that the deceased drank the poison with the intent to commit suicide. Even if this would relieve the defendant it does not appear from the petition that the deceased drank the poison, knowing that it was poison, and with the intention of taking his life.
The petition set forth a cause of action. The court did not err in overruling the demurrers.
Judgment affirmed. Stephens, P. J., and Sutton, J., concur.