146 Mo. App. 246 | Mo. Ct. App. | 1910
The plaintiffs are the widow and minor children of Roscoe C. Darks, deceased, who lived and died at Wetumka, Oklahoma, where, during his lifetime, he conducted a general merchandise and grocer business in partnership with one Williams, under the firm name of Williams and Darks. The defendant is engaged in the wholesale grocer business at St. Louis. E. W. Rizer, at the times hereinafter mentioned, was doing business at Muskogee, Oklahoma, as a merchandise broker, and under the name of E. W. Rizer & Co. Mr. Rizer, as such broker, had from time to time sold goods for the defendant as an ordinary broker on commission. The defendant paid him no salary, and limited him to no territory, but he sold goods for the defendant and for other merchants. On August 19, 1904, Rizer obtained from Williams and Darks an order for merchandise amounting to $16.13. In this order was included one dozen four-ounce bottles of ginger extract. The order directed the shipment to be made via the Frisco Railroad from St. Louis. In due time the order was mailed and the defendant accepted and the goods delivered to the railroad company and shipped to Wetumka, and received by Williams and Darks. On the 25th day of October, following, Mr. Darks died, as the testimony shows, from the result of wood alcohol poisoning.
This action was brought in the circuit court of the city of St. Louis, by the widow and children, for the death of Mr. D'arks, and judgment was rendered against the defendant in the sum of five thousand dollars, from which this appeal is prosecuted.
The petition further charges that the ginger sold by the defendant was prepared of wood alcohol, and was a deadly poison, and that the same was prepared and manufactured by the defendant, and that the death of Darks was due to the wrongful and careless act of the defendant in selling to said Darks said poisonous liquid. After setting out Lord Campbell’s Act as it appears by the Statute in force in the Indian Territory, as the same was declared to be in force in that territory by the act of Congress, May 2nd, 1890, the petition concludes, by charging that the death of said Darks was caused by the wrongful, wanton, and careless act of the defendant, and that plaintiffs have been damaged thereby in the sum of $20,000.
The answer consisted of a general denial and also of a plea of contributory negligence, in that it was charged that Mr. Darks came to his death by reason of carelessly and negligently taking and drinking large quantities of the extract mentioned in plaintiff’s petition.
There is not much dispute about the facts. Although the petition charges that the extract of ginger was in fact prepared and manufactured by the defendant, the testimony shows it was not made by the defendant, but by one Shelley, doing business as the Shelley Manufacturing Company. Mr. Shelley was a chemist and had been for years engaged in the manu
When the defendant received an order for extracts, if it did not have the same on hand, they were ordered, generally, from Mr. Shelley. The extracts were put in bottles containing about 2 1-2 to 2 3-4 ounces of liquid, about ten per cent of which was oleo-resin of ginger, and about eighty-five per cent Columbian spirits, or wood alcohol. The bottles were packed in boxes after being labeled, with a label furnished by the defendant, and delivered to the defendant enclosed in the boxes, so that the defendant made no examination of the bottles. There was no proof that the defendant, or any of its officers had any knowledge of the ingredients used in compounding the extract. On the contrary, it was affirmatively shown that they had no such knowledge, but bought the extract from a reputable, or presumptively reputable, compounder, and disposed of the extracts in the original packages in the regular course of trade.
Mr. Shelley was offered as a witness by the defendant, and testified that he was a graduate in pharmacy; that he had worked in wholesale drug stores, and that he was a manufacturing chemist, and had been for many years; that for eight years previous to the sale of the extracts in question, he had prepared for the defendant and other wholesale dealers in St. Louis, lemon, vanilla, pineapple, ginger, and many other extracts; that in preparing his extracts he used the Columbian Spirits purchased from Meyer Brothers drug store in St. Louis, and that he had been using the Columbian Spir
The invoice of the goods shipped and sent to Williams and Darks contained the following: “All goods beáring our Buffalo Brand are guaranteed.” On the bottles containing the ginger extract, was a label as follows: “Buffalo Brand Pure Ginger. Scudder-Gaie Grocer Go., St. Louis.” And in addition thereto, tbe head of a buffalo was printed on each bottle.
The evidence shows that at the time Williams and Darks carried a general line of merchandise, including a few medicines and sundry drugs; that when Mr. Rizer called to sell them the goods, and at the time they ordered the same from him, he showed them a sample bottle of the extract and stated that it was used as a medicine, and that it was of defendant’s own manufacture.
The testimony of the plaintiff tends to prove that Mr. Darks was not feeling well, and that he concluded to take some of the extract of ginger ordered from the defendant, and poured it into a bottle containing water, and drank therefrom two or three times, and he became sick and died from poison contained in the extract, to-wit: wood alcohol.
On the part of the defendant, the testimony tends to show that the deceased was not using the extract simply as a medicine, but that he was a drinking man and used it as a beverage, and offered it to his friends and stated that it was “pretty good.”
It may further be said that the Columbian Spirits was deodorized wood alcohol, and that wood alcohol
The court permitted Mr. Williams to testify to statements made by Mr. Rizer at the time the extracts were ordered. The evidence shows Mr. Rizer was dead, at the time of the trial, and it claimed on account thereof, that Williams being a party to the contract, was not competent.
This position is based upon the law as declared in Williams v. Edwards, 94 Mo. 447, 7 S. W. 429, wherein it is declared that “one who contracts with the authorized agent of a corporation is not a competent witness as to such contract, or the admissions and declarations of the agent after the latter’s death.” The reason for the rule is clearly and plainly stated by Judge Sherwood in that case, as follows: “The object of the statute is to guard against false testimony by the survivor, and in order to do this, it establishes a rule by which, when the lips of one contracting party are closed by death, the lips of the other party are closed by law. A corporation can only speak and act through agents, and if, after the death of an agent of a corporation, it were admissible for a party to come in and testify to a contract made with such deceased agent, it is easy to see that corporations would be without protection where others, in like circumstances, are fully protected.”
In Drew v. Railroad, 129 Mo. App. 466, 107 S. W. 478, the Kansas City Court of Appeals declares that
We fail to see the difference in principle, whether the action be on the contract, or in tort. If in either case, the terms of the contract are a material issue to be determined, .then it seems to us the same rule should apply. It is not necessary, however, to determine this question, as we put our holding on another theory. The statute provides in actions where one of the original parties to the contract or cause of action in issue and on trial, is dead, the other party to such contract or cause of action shall not be permitted to testify either in his own favor or in favor of one party to the action claiming under him. The statute does not entirely refuse permission to the living party to testify. It disqualifies the living witness from testifying to matters in his own favor. He is not disqualified from testifying against himself, nor about matters concerning which he has no interest. The purpose of the statute is correctly declared by Judge Sherwood as above set forth.
M'r. Wiliams had no interest in the case being tried at the time he was offered as a witness. He was in no wise affected by the result of the litigation, and therefore, he was not testifying in his own behalf. We believe he was a competent witness under the rulings declared in Thompson and Thompson v. Brown, 121 Mo. App. l. c. 529, 97 S. W. 242; Bank v. Hunt, 25 Mo. App. 170; Ford v. O’Donnell, 40 Mo. App. 51; Bridges v. Bell, 13 Mo. 69; Angell v. Hester, 64 Mo. 142; Matter of Potter, 161 N. Y. 87; Neish v. Gannon, 198 Ill. 223; Lasseter v. Simpson, 78 Ga. 61.
It is also urged by appellant that the court should have limited the measure of the recovery to five thousand dollars. At the time the suit was commenced, our statute limited the amount of recovery in such cases to five thousand dollars, and appellant claims that the goods were sold in St. Louis and delivered to the defendant when placed on the cars, according to the terms of the
The court permitted respondent to offer evidence showing the business habits of Mr. Darks and his interest in his family, and his conduct toward the different members thereof. The appellant claims such evidence was not admissible. It is true that the plaintiff’s right to a recovery in this case is by law limited to the pecuniary damages sustained. In determining the amount of the pecuniary damages it seems to us that the kind and character of a husband and father for whose death damages is sought, is certainly a matter to be considered, and our contention is supported by authorities. [Gamache v. Tin Foil & Metal Co., 116 Mo. App. l. c. 602, 92 S. W. 918; Railway Co. v. Haist, 71 Ark. 267; 13 Cyc. 371.]
The appellant’s main point on this appeal is presented in its following assignment of errors: “The court should have directed a verdict in favor of the defendant for the following reasons: The action is in tort, the tort alleged being the wrongful sale of the poisonous compound, and there was no proof of the facts necessary to establish such tort, i. e., knowledge that the compound was poisonous, and no proof of the facts from which the jury could find the alternative of knowledge, to-wit, a reckless selling, with no knowledge. There was a fatal variance between the allegations and the proof in that the petition alleged the case in tort, whereas the proof showed nothing more than a breach of warranty.”
The question of the liability of a manufacturer and dealer in food products to persons to whom the same
The leading case in this country is Thomas v. Winchester, 2 Seldon N. Y. Court of Appeals Reports, 397. In that case, Mrs. Thomas, being ill, her physician prescribed a dose of dandelion. Her husband purchased what was believed to be the prescribed medicine at the store of Dr. Foord, a physician and druggist. Mrs. Thomas took some of the medicine with very alarming-effects. The medicine administered was belladonna and not dandelion. The jar from which it was taken was labeled “dandelion, prepared by A. Gilbert, New York.” It was sold for and believed by Dr. Foord to be the extract of dandelion, as labeled. Dr. Foord purchased the article as dandelion from Mr. Aspinwall, a New York druggist. Mr. Aspinwall bought it of the defendant as an extract of dandelion. The defendant was engaged in New York in the manufacture and sale of extracts for medical purposes, and Gilbert was a person employed by the defendant at a salary. The jars were labeled in Gilbert’s name, because he had previously been engaged in the same business on his own account, and because his labels rendered the articles more salable. The defendant claimed there was no liability because there was no privity of contract between him and the plaintiff and cited many authorities in support of his position. The court ruled against him and said: “In respect to the wrongful 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
That case is cited by our Supreme Court in the case of Heizer v. Kingsland & Douglas Mfg. Co., 110 Mo. 605, 19 S. W. 630, and our court, after citing the New York and other authorities, correctly declares: “The difficulty in the practical administration of the law is to fix upon the dividing line between those cases where the duty begins and ends with the contract, and where the law imposes a duty to third persons notwithstanding the contract.”
In Bishop on Non-Contract Law, sec. 413, it is said: “It is a nuisance, which is also treated as negligence, to send out into the community a thing liable to be used by persons ignorant of its nature to their injury.”
In Clement v. Crosby & Co., decided by the Supreme Court of Michigan in 1907, the plaintiff purchased
A leading case is McCaffrey v. Mossberg Mfg. Co., 23 R. I. 381, 55 L. R. A. 822, 91 Am. St. Rep. 637, 50 Atl. 651, in which the court divides into three classes the cases involving the liability of a manufacturer to parties with whom he had no privity in contract, as follows: “First, where the thing causing the injury was of a noxious or dangerous kind, upon the principle that one who dealt with an imminently dangerous article owed a public duty to all to whom it might come, and whose lives might be endangered thereby, to exercise caution adequate to the peril involved.” This principle the court said is based upon the duty which the law imposes upon every one to avoid acts which in their nature, are dangerous to the lives of others.
In Tomlinson v. Armour & Co., the Supreme Court of New Jersey in 1908, reviewed the authorities in this country, and concluded therefrom that irrespective of the presence or absence of contracts or obligations arising out of the dealings between manufacturer and retailer and between retailer and consumer, the manufacturer is under a duty to him who in the ordinary course of trade becomes the ultimate con
The greater part of the discussion of the question has been devoted to the liability to third persons, and not to the liability to the immediate purchaser.
Without further citing the authorities or discussing the question, we conclude that the law is correctly declared in Tomlinson v. Armour & Co., and Thomas v. Winchester, and that the law is, that a manufacturer or dealer will be held liable to one injured by a poison sold by him, even though such injured person was not the purchaser of same from the dealer, provided the injury complained of was the direct, natural and probable consequence of the dealer’s negligence in preparing the poisonous article. In support of the proposition, we cite McKibban v. Bax, 13 L. R. A. (N. S.) 646, and the note of the decisions there found; also Morrison v. Lee, 13 L. R. A. (N. S.) 650, and the authorities there cited; Tomlinson v. Armour & Co., 19 L. R. A. (N. S.) 923, and a note to that case therein contained; and note to the decision found in Tomlinson v. Armour & Co., 67 Central Law Journal 380.
The one remaining question relates to the instructions given by the court. • In the first instruction given in behalf of plaintiff, the following elements are submitted: “The relationship of plaintiffs to deceased; the business of defendant; the business of Williams & Darks as retail grocers; the sale of the extract of ginger by defendant Williams & Darks; the representation by defendant’s agent at the time of the sale that the article was pure ginger, manufactured and put up by the defendant; that such ginger was generally known to be used as a medicine, and when properly prepared was harmless; that the ginger was actually put up in wood
It will be noticed the instruction contains no element of knowing misrepresentation or negligence on the part of the defendant. In other words, the instruction does not require the jury to find that the acts complained of constitute negligence. It simply states if the jury find the above facts, they shall find a verdict for the plaintiff. The word “negligence” or any kindred word, is not found in the instruction.
Unless the conduct of the defendant, as shown by the uncontradicted evidence, was negligence, so that the court had the right to declare the acts to be such as a matter of law, it was error to give the instruction.
Without revieAving again the authorities above cited, it may be stated therefrom that the action in this class of cases is in tort, and not in contract. It will also be seen that in some cases the court is justified in declaring the act to be negligence as a matter of law. If a manufacturer or dealer in drugs puts a label upon the article indicating that it is harmless, and the label is false and the article poisonous, then as a matter of law, he is liable as proof of the fact is proof of the negligence, and it is not necessary to submit to the jury the question of whether such an act is negligence.
In this case it is shown by plaintiff that the defendant’s agent at the time he sold the extracts, said they were manufactured by the defendant. Upon the invoice, showing the sale of the articles, there was written the statement that all goods bearing the Buffalo Brand of defendant are guaranteed, and the bottles containing the extract were labeled “Buffalo Brand Pure Ginger. Scudder-Gale Grocer Company.”’
In cases wherein the manufacturer knows that the article is dangerous or poisonous, then there is no question but what he is guilty of negligence in sending it out to be used, unless he had properly labeled it, so that persons handling it may know of the danger in its use.
In Brown v. Marshall, 47 Mich. 576, the plaintiff desiring to take epsom salts as a medicine, sent her sister to the store of defendant, druggist in the same city, to procure the salts for her. The sister called for epsom salts and was waited upon by defendant’s clerk, who delivered to her what he said was the article she called for. The plaintiff, after dissolving the same in water, took a portion thereof, and was immediately taken seriously sick, and it was later determined that the defendant’s clerk had given her white vitriol instead of. the salts called for.
The court in that case, as here, omitted to include in the plaintiff’s instruction, negligence as an element in the right to recover, and the court said: “The judge, instead of submitting the mistake to the jury as something in itself necessary to constitute a cause of action, should have submitted it as a matter of evidence on the question of negligence of the cogency of which it was their right and duty to judge.” And the case was reversed because the court omitted from its instruction the element of negligence.
The appellant has called our attention to the case of Akers v. Overbeck, 18 Misc. (N. Y.) 198. The plaintiff in that case was a coffee roaster, defendant a grocer, who had sent him bags of coffee to roast. In one bag was a twenty-six-pound stone, which damaged plaintiff’s coffee roaster and he sued for damages. The court said: “The question is, were the defendants negligent in failing to inspect the bag before its delivery to plaintiff with a view to a discovery of this foreign substance? The answer must be that they were not.”
The above cases differ from the case at bar in one particular. In this case the plaintiff’s testimony showed, and the jury were required to find that the agent of defendant in making the sale, represented that the article was good for medicine, and it was manufactured by the defendant. The defendant claims that the article was not for medicinal purposes, but for flavoring purposes only. This, under the evidence, was something the deceased did not know, but on the contrary, he had been advised that the extract was good as a medicine. If the defendant is liable for the representations of its agent in making the sale to Williams and the deceased, then it seems to us that it was negligence per' se for the agent to represent that an article containing eighty - five per cent of wood alcohol was a good medicine.
• In 3 Blackstone, p. 165, it is declared- that in contracts for provisions it is always implied that they are wholesome, and if they are not wholesome, an action on a case for deceit, lies against the vendor.
In Sinclair v. Hathaway, 57 Mich. 60, it is declared : '‘Where the seller prepares the article himself, then he knows or should know how the article is prepared, and if not properly prepared, there certainly would be no injustice in holding that he is responsible.
In the Encyclopedia, page 1238, the doctrine is laid, down that in all cases in the sales of food for domestic use, an implied warranty exists, that they are fit for use and wholesome.”
So carefully have the courts regarded these exceptions, that in Lukens v. Freiund, 27 Kans. 664, 40 Am. Rep., the court held, that in the absence of actual negligence on his part, the miller is not liable upon an implied warranty, for injury to cattle from bran bought from him in which, without his negligence, pieces of metal had accidently fallen, but the court said it would be otherwise in case of food for human beings. And said, relating thereto: “One may not place poison where it is likely to be taken by one ignorant of its qualities. Regard for human life compels this.”
The same ruling is made by the Supreme Court in Clement v. Rommeck, 149 Mich. 595, 113 N. W. 286. In that case the action was against the merchant who had sold stove polish to a customer who was injured in attempting to use it. The court said: “It is sought to liken the case to the sale of an article of food in which it is held that the sale to a consumer carries with it an implied warranty of the wholesomeness of the food. We are not aware that the rule of these cases has been extended to the sale of commodities like stove polish.”
In Watson v. Brewing Co., 1 L. R. A. (N. S.) 1178, a manufacturer made and bottled for consumption, a beverage represented to be harmless and refreshing.
In the case of Blood Balm Co. v. Cooper, 83 Ga. 457, 20 Am. St. Rep. 324, the doctrine just announced is discussed and endorsed.”
In Norton v. Sewall, 106 Mass. 143, 8 Am. Rep. 298, it is held that an apothecary who had sold a deadly poison for a harmless medicine, was liable for the death of the person to whom it was administered.
In Cameron v. Mount, 56 N. W. 1094, the plaintiff bought a horse of the defendant for his wife to drive, and. the defendant represented to the plaintiff that the horse was kind and gentle, free from tricks and perfectly safe for plaintiff’s wife to drive. The plaintiff purchased the horse and when his wife was driving it, it ran away and permanently injured her, and the action
From the authorities above cited, and also in reason, we believe the law is and should be that where a person selling an article represents to the purchaser that it is wholesome and pure, and that it is good to take into the human system, and it is proven that the representation is false and that the article was a deadly poison, dangerous to human life, and that a person relying upon the statement, purchases the article and uses it for the purposes for which it has been sold and is injured thereby, the seller should be liable as a matter of law.
In this case it must be remembered and considered that defendant was a well-known grocery house, located with an established business in one of the largest cities in the country. It had adopted a special brand which it used in selling its guaranteed articles. Dealers were informed that any article bearing the “Buffalo Brand” was guaranteed to be pure. The agent or broker of this well-known wholesale house represented to the deceased that the article bore this brand, and showed him a sample thereof; that it was of the defendant’s own manufacture and was good as a medicine. The statement was not unreasonable, as the evidence shows that ginger extracts are used by persons for certain ailments, and it is not unconimon for them to be used as a medicine.
The jury has found that the deceased did not take the extract as a beverage (as this matter was submitted by proper instruction), but that he took the same for medicinal purposes, and as a result thereof, lost his life. The jury were required to find these facts before returning a verdict in favor of the plaintiff.
The liability of this class of cases has not always been placed by the courts upon the same basis. We believe, however, that the reason assigned by the Su
The appellant maintains that the defendant is not responsible for the representations made by its agent in selling the extracts, as the evidence shows he had no authority to make the same.
Any fraud perpetrated by the agent on a third party in the course of his employment, and for the benefit of the principal, must be imputed to the principal, whether or not the latter had actual knowledge of it. [Keyser v. Kinkle, 127 Mo. App. 62, 106 S. W. 98; Judd v. Walker, 215 Mo. 312, 114 S. W. 979.]
The defendant permitted the agent to go into the field and solicit orders. In soliciting business for the defendant, questions would naturally come up concerning the quality and usefulness of the articles the agent was attempting to sell, and therefore, statements made by the agent concerning the quality of the articles and the purpose for which they were intended, must be within his apparent authority.
The liability of the principal for his agent’s tort is not based upon any presumed authority in the agent to do the act, but upon public policy, for the reason that it is more reasonable when one of two innocent persons must suffer from the wrongful act of a third person that the principal who has placed the agent in the position of trust and confidence should suffer than a stranger. [Herald v. Bryan, 195 Mo. 574, 92 S. W. 902; Baree v. City of Cape Girardeau, 197 Mo. 382, 95 S. W. 330; Heath v. Schroer, 119 Mo. App. 93, 96 S. W. 313.]
It is also claimed by the appellant that the instruction of the court and the law, as we have declared it, relates to actions on contract and not in tort; that the petition in this case pleads the contract, and, there
In holding that the defendant is liable for negligence, as a matter of law, we have not overlooked the rule declared in this State as follows: “Even where the evidence is all one way, if it is of such a character that reasonable minds might differ with respect to it, the case is still one for the consideration of the jury. [Hamman v. Coal & Coke Co., 156 Mo. 233, 56 S. W. 1091; Johnson & Co. v. Springfield Ice & Refrigerator Co., 127 S. W. 692, decided by this court May 3, 1910.]
We only hold that if the jury found the facts as alleged in plaintiff’s instruction No. 1, then the defendant was guilty of negligence, as a matter of law.
Having examined all the assignment of errors found in appellant’s brief, and having reached the conclusion that the record is without substantial error, we will affirm the judgment.