Wadsworth v. Dunnam , 98 Ala. 610 ( 1893 )

McCLELLAN, J.

Tbis action is on certain notes given by Wadsworth to F. P. & 0. L, Dunnam’ in settlement of an account. Some of the items of this account were charges for bottles of “Ginseng Cordial” sold by plaintiffs to defendant. A statute of force at the place of these sales made it “unlawful for any person or persons to sell, give away, or otherwise dispose of, any spirituous, vinous or malt liquors, or intoxicating bitters or beverages”; and imposed a penalty for its violation. — Acts 1882-3, pp. 613-616. The defense was that this “Ginseng Cordial” was an intoxicating bitters or beverage within this act; and the plea to this effect presented the sole issue on the trial below.

Ginseng Cordial is not what is generally known as intoxicating liquor, such as whisky, brandy, gin and the like, nor, on the other hand, is it what is generally and properly known as medicine, or as a toilet or culinary article recognized as such in standard authority, the United States Dis-pensatory for instance, such as tincture of gentian, paregoric, bay-rum, cologne, essence of lemon, and the like, which, though containing alcohol and capable of producing intoxication, are not intoxicating liquors, bitters or beverages within prohibitory statutes. And it is not therefore to be declared as matter of law, either that this cordial is, or that it is not, within the provisions of the act referred to. Whether it is so or not is a question of fact for the jury under the instructions of the court.—Black on Intox. Liq. § 8; Intoxicating Liquor Cases, 25 Kan. 7 1; s. c. 37 Am. Rep. 284; Carl v. State, 87 Ala. 17.

On this issue of fact there was evidence — indeed, it was not controverted — that the cordial in question contained alcohol; and the evidence for the defendant was that the proportion of alcohol was so great as that the mixture was about as intoxicating as whisky. There was no pretense on the part of plaintiffs that the decoction was useful, or intended to be used, as an article for the toilet, or for culinary or mechanical purposes ; their sole theory was, that it was a medicine containing only sufficient alcohol to prevent fermentation ; but the only evidence adduced in support of this theory was, that “the mixture consisted of thirty parts of water, eight parts of alcohol, two parts of simple syrup and ginseng, and other roots and herbs possessing medicinal properties.” On the other hand, an expert testified for defendant that he had analyzed the cordial, and that the ginseng and other herbs it contained possessed no medicinal properties whatever. And the evidence further went to show that the cordial was not sold to or used by sick persons, but was sold to persons having no occasion for a medicine, and dr^nk by them to intoxication as a beverage. In view of this contention of the plaintiffs, that the mixture was a medicine and not a beverage, and this evidence on the part of the defendant, that it was not a medicine at all and possessed no medicinal qualities, but was an intoxicating beverage, it was manifest error for the trial court to assume, as it did in the third charge given at plaintiff’s request, that the mixture did possess medicinal properties.—Cary v. State, 76 Ala. 78; Sandlin v. Anderson, Green & Co., 76 Ala. 403; Joyner v. State, 78 Ala. 448; Carter v. Chambers, 79 Ala. 223; Jonas v. Field, 83 Ala. 445; Richmond & Danville R. R. Co. v. Greenwood, (Mss.)

In giving many of the charges requested by the plaintiffs and in refusing some of those asked by the defendant, the court below proceeded on the idea that, aside from other considerations, “Ginseng Cordial” could not be said to be an intoxicating bitters or beverage, if it produced intoxication only when used unreasonably, inordinately, immoderately or excessively, and would not have this effect if used reasonably and moderately, or in ordinary and not excessive potations. Thus charge 2, given for plaintiffs, in its last sentence declares : “If the bitters sold in this case would not in ordinary and reasonable use intoxicate, the jury must find for the plaintiffs.” Charge 4 for plaintiffs is in the following language: “It is not the question whether it was possible to use the bitters as an intoxicating beverage, but whether it is reasonably susceptible of such use, and it must be such by moderate and practical use, not by immoderate or excessive use. If the jury believe from the evidence that the bitters must have been drunk immoderately or excessively in order to make it practically or reasonably susceptible of use as an intoxicating beverage, then they must find for the plaintiffs. Charge 7 of plaintiffs’ series is as follows : “If the evidence shows that the bitters sold by plaintiffs were only intoxicating when used excessively or immoderately, then the jury must find for the plaintiffs.” And so with several other instructions given at plaintiff’s request, while one or two charges asked by defendant and refused were intended to instruct the jury that the decoction might be held to be an intoxicating beverage, notwithstanding moderate use of it would not produce intoxication. In giving these charges for the plaintiffs, the court below, in our opinion, set up a false criterion for the determination of the question involved. The words employed, in their construction are, of course, to be taken in their ordinary significance. The word “intoxication,” as therein used, means an abnormal mental or physical condition cine to the influence of alcoholic liquors — a visible excitation of the passions, an impairment of the judgment, or a derangement or impairment of physical functions or energies.—Black on Intoxicating Liquors, § 423; Standard Life & Accident Ins. Co. v. Jones, 94 Ala. 434. This implies a condition which would not result from the reasonable, ordinary and moderate use of the most intoxicating liquors. Intoxication, by means even of those liquors which the law itself recognizes as per se intoxicating, in general acceptance, is produced by their unreasonable, inordinate, immoderate or excessive use; and to say that no liquor is intoxicating unless its moderate and reasonable use will produce inebriety, is to declare that no liquor whatever is intoxicating. This can not be, and is not the test. The true criterion is that declared by Justice Brewer in the Kansas Liquor Gases referred to above, and adopted by this court in Carl v. State, supra. It is thus stated : “If the compound or preparation be such that the distinctive character and effect of intoxicating liquor are gone, that its use as an intoxicating beverage is practically impossible by reason of the other ingredients, it is not within the statute.On the other hand, if the intoxicating liquor remain as a distinctive force in the compound, and such compound is reasonably liable to be used as an intoxicating beverage, it is within the statute, and this though it contain many other ingredients of an independent and beneficial force in counteracting disease or strengthening the system. Intoxicating liquors or mixtures thereof: this, reasonably construed, means liquors which will intoxicate and which are commonly used as beverages for such purposes, and also any mixture of such liquors as, retaining their intoxicating qualities, it may fairly be presumed may be used as a beverage and become a substitute for the ordinary intoxicating drinks.” Given that the particular compound will intoxicate, the question is not what quantity of it is necessary to produce intoxication, but whether the necessary quantity, however great or small, may reasonably be drunk. It is of no consequence that it may require from two to eight bottles of this “Ginseng Cordial” to produce intoxication if that quantity may be taken without other deleterious consequences than such as are incident to intoxication. If the quantity requisite to a state of intoxication may be safely used, it is a compound “reasonably liable to be used as an intoxicating beverage” and therefore within the statute. The instructions to which we have adverted appear especially misleading and erroneous when referred to the undisputed evidence tbat tbe compound was agreeable to tbe taste, tbat it was used solely as a beverage, and to a great extent as snob, and tbat it could be relied on to produce intoxication without any baleful consequences other than are incident to intoxication by means of other alcoholic liquors. Their natural effect in this connection taken with evidence on tbe part of plaintiffs tbat it required from two to eight fourteen ounce bottles to produce intoxication, was to impress tbe jury tbat tbe cordial was not an intoxicating beverage merely because it took a good deal of it to accomplish inebriety when upon no principle or reason can tbe quantity alone have any bearing on tbe matter so long as the compound is agreeable to tbe taste and tbe necessary, quantity may be safely taken. These charges clearly should not have been given.

What we have said will suffice for tbe guidance of tbe Circuit Court on another trial.

Reversed and remanded.