Norton v. Sewall , 106 Mass. 143 ( 1870 )

Gray, J.

Upon the allegations in the declaration, and the statements in the bill of exceptions, the jury must be taken to have found that the defendant, an apothecary, by Ms servant, negligently sold, as and for tincture of rhubarb, (a well known and harmless medicine,) two ounces of laudanum, a dangerous and deadly poison, to Patten, who procured it for the purpose of admimstering it, and did administer one ounce of it, as a me dicine, to his servant, the plaintiff’s intestate, from the effects of which he died. This finding includes a violation of duty on the part of the defendant, and an injury resultmg therefrom to the intestate, for which the defendant was responsible, without regard to the question of privity of contract between them. The case is within that of Thomas v. Winchester, 2 Selden, 397, wMch has often been recognized and approved by this court. Davidson v. Nichols, 11 Allen, 514, 519. McDonald v. Snelling, 14 Allen, 290, 295. Wellington v. Downer Kerosene Oil Co. 104 Mass. 64.

By the statutes of the Commonwealth, “actions of tort for assault, battery, imprisonment, or other damage to the person,’ survive, and may be prosecuted by the executor or administrator of the party injured. Gen. Sts. c. 127, § 1; c. 128, § 1. The words “ damage to the person,” as here used, do not, indeed, extend to torts not directly affecting the person, but only the feelings or reputation, such as breach of promise, slander, or malicious prosecution. Smith v. Sherman, 4 Cush. 408. Nettleton v. Dinehart, 5 Cush. 543. But they do include every action, the substantial cause of which is a bodily injury, or, in the words of Chief Justice Shaw in 4 Cush. 413, “ damage of a physical character; ” whether the connection between the cause and the effect is so close as to support an action of trespass, or so indirect as to require an action on the case, at common law. Hollenbeck v. Berkshire Railroad Co. 9 Cush. 478. Demond v. Boston, 7 Gray, 544.

In Cutting v. Tower, 14 Gray, 183, cited for the defendant, the action which was held not to come within the Rev. Sts. e. 93, § 7. declaring that actions for damage done to real and personal estate should survive, was an action for deceit in selling poisoned meal, and the death of the buyer’s horses from eating it was alleged incidentally and by way of aggravation only. It was of such an action, the gist of which was the fraud and deceit, that Mr. Justice Bigelow was speaking, when he remarked in that case, that if the meal had been made into bread for the buyer’s family, and thereby occasioned them sickness and suffering, an action would not have survived for an injury to the person. But in the case at bar, the principal, indeed the only, ground of action is the injury caused t<$ the body of the intestate by the defendant’s act.

Exceptions overruled.