Bennett Drug Stores Inc. v. Mosely , 67 Ga. App. 347 ( 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.

DECIDED MAY 8, 1942. Mrs. Ira Mosely sued Bennett Drug Stores Incorporated for damages allegedly resulting from the sale of carbolic acid to petitioner's husband while he was in such a state of intoxication as not to be able to comprehend its dangerous nature, the husband of petitioner having drunk the poison and died as a result thereof. The petition alleged: "6. On the night of July 25, 1941, petitioner's husband left his home in a cheerful frame of mind and proceeded to the business section of Brunswick. 7. Petitioner's husband on that night proceeded to become intoxicated to such an extent that it was obvious to any person of ordinary intelligence that he was not in possession of his faculties. 8. While in this state of intoxication petitioner's said husband went to the drug store operated by the defendant and asked to purchase some carbolic acid. 9. Defendant's servant and employee whose name is to petitioner unknown, but which is well known to defendant, sold him the said poison even though it was evident that he was heavily intoxicated. 10. At the time the said poison was sold to petitioner's husband it was obvious that he was not capable of understanding the dangerous nature of the poison. 11. Petitioner's said husband staggered from the store and immediately drank the carbolic acid and died within a few minutes from the effects of the poisonous drug. 12. Petitioner's husband was always happy and carefree when he was in possession of his faculties, and he had never spoken of suicide and had no reason for self-destruction. 13. By reason of its business as a druggist, the defendant owed to petitioner's husband a duty not to place a dangerous drug and poison into his hands while he was obviously in a state of intoxication, and while it was obvious that he could not understand and comprehend the dangers of it. 14. The sale of the poison to petitioners husband by the defendant was the cause of his death. 15. The defendant, its servants, agents and employees were negligent in the following manner, to wit: (a) in selling a deadly poison to an intoxicated person; (b) in selling a deadly poison to an intoxicated person who, it was obvious, could not comprehend its dangerous nature; (c) in selling a deadly poison to a person who, because of the intoxicated state that he was in, would have been unable to put it to any legitimate use."

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., 186 Ga. 870 (199 S.E. 213, 128 A.L.R. 456). If the alleged facts are proved they will show negligence per se.

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, 72 Miss. 1 (16 So. 245, 35 L.R.A. 474), and Kingv. Henkie, 80 Ala. 505, 510 (60 Am. R. 119), it was held that the proximate causes of the deaths were the voluntary drunkenness of the deceased persons and not the sale of a prohibited substance to them. It is the general rule that the duty which one owes to avoid the consequence of another's negligence is that degree of ordinary care which would be exercised by a sober person. There are exceptions to the rule, however, and we think the exception applies in this case. It is clear to us that a person who is too drunk to understand the dangerous nature of carbolic acid is one of the class designed to be protected by the Code section above referred to. The exception to the rule we have mentioned is based on the doctrine of last clear chance, or humanitarian doctrine, and is predicated on the theory that there is a duty owed to one who has been so negligent as to render himself incapable of exercising ordinary care to protect himself, after such incapacity is known. This doctrine has been applied in numerous cases where a drunk or a disabled person was in a place of danger and where his helplessness or facts indicating helplessness were known to another. Where this situation exists it is such other person's duty to exercise ordinary care to avoid injuring the unfortunate person even though if it had not been for the previous negligence, such as voluntary drunkenness, he could have put himself in a place of safety by the exercise of ordinary care. In 2 Restatement of the Law of Torts, 1257, 1258, § 480, it is stated: "A plaintiff who, by the exercise of reasonable diligence could have observed the danger created by the defendant's negligence in time to have avoided harm therefrom, may recover if, but only if, the defendant (a) knew of the plaintiff's situation, and (b) realized or had reason to realize that the plaintiff was inattentive and therefore unlikely to discover his peril in time to avoid the harm, and (c) thereafter is negligent in failing to utilize with reasonable care and competence his then-existing ability to avoid harming the plaintiff." In the same work, pages 1262, 1263, § 483, it is stated: "If the defendant's negligence consists in the violation of a statute enacted to protect a class of persons from their inability to exercise self-protective care, a member of such class is not barred by his contributory negligence from recovery for bodily harm caused by the violation of such statute." See also Clay v. Macon Birmingham R. Co.,111 Ga. 839 (36 S.E. 233); Central Railroad v. Brinson,70 Ga. 207; Middlesex c. Ry. Co. v. Egan, 214 Fed. 747 (3), 31 L.R.A. (N.S.) 1035 (note). A person is charged with knowledge that a man staggering drunk is incapable of exercising ordinary care for his own safety, and he is bound to deal with him with that fact in mind.

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.