Hoard v. Peck , 1867 N.Y. App. Div. LEXIS 259 ( 1867 )

Foster, J.

The facts claimed in the complaint, and proved on the trial, were as follows : The plaintiff and his wife were residents of the village of Watertown, in the county of Jefferson. They had two children. The wife of the plaintiff, previous , to January, 1866, enjoyed good health, and had the charge of the'plaintiff’s household affairs, and of the children. The defendant had been for some years a druggist, in that village, and knew the plaintiff and his wife. From January, 1866, to October of that year, the defendant from day to day secretly sold to the wife, to be used by her as a beverage, and which she did use as a beverage, large quantities of laudanum, ranging from four to twelve ounces per day, which the defendant knew was used by her as a beverage, without the knowledge or consent of the plaintiff; and well knowing, while he was so selling the laudanum to her, that it was injuring and impairing her health; and concealing the fact of such sales, and use thereof, from the plaintiff; and from the use of the drug the wife of the plaintiff became sick and emaciated, and her mind was affected, so that she was unable to perform her duties as such wife, and her affections became alienated from the plaintiff, and he lost her affections and society, and was compelled to expend divers sums of money in the medical and other attendance upon her in effecting a cure.

It is 'not necessary to examine the evidence in detail. All the above facts were proved by the witnesses for the plaintiff, and were not to any material extent contradicted by the testimony of the defendant; and, under the charge of the judge, the jury found them all to be true; and so far as there was any conflict in the evidence, we are to assume' that the jury gave credit to the testimony which supported the finding.

The main question is, can the plaintiff, upon such a state of facts, maintain an action.

It is claimed for the defendant, that the selling of laudanum is a lawful business, and that therefore no action will lie against him; that it is like the selling of intoxicating liquors, the selling of which he claims is lawful, except so far as restrained by positive statutory enactment. And it is also claimed that, whether lawful to sell it or not, the wife having voluntarily used'it, the defendant not having assisted her in the act of taking it, therefore he is not liable, for the injury caused by her use of it.

Although there is no statute prohibiting the sale of laudanum, either as a beverage or for any other purpose, it does not follow that therefore a sale of it-in all cases is-lawful. Its lawfulness, or unlawfulness, depends upon the circumstances of the sale, and the uses and purposes to which it is to be applied. It is doubtless lawful to sell laudanum as a medicine, or for any chemical or meehanical.purposes, if any, for'which it may be used. It is also, as a general rule, lawful to sell spirituous liquors as a beverage, except in the cases prohibited by statute, and I know of no reason why the sales of spirits prohibited by statute would not be lawful, in the absence of such prohibition.

But it does not follow from this that an action may not be maintained against one who improperly sells ardent spirits to a wife or servant, although no notice not to do so had been given, pursuant to the statute. (2 R. S., 5th ed. 944, 945, §§ 21, 29.) Where notice not to sell has been given, a single sale, in a case so prohibited, would subject the offender to the penalty, and for any damages sustained thereby; while without the notice such sale would be lawful, because from time immemorial it has been lawful to use ardent spirits as a beverage, and sales for that purpose have been allowed.

But, independent of the statute, if a party should allow a wife ¿r servant of another to frequent his drinking room, without the knowledge of the husband or master, and should daily furnish the wife or servant with liquors to be there drank, until intoxicated, and the husband or master thereby sustains a pecuniary loss, does it follow because it is lawful to sell it as a beverage, under other circumstances, that it is lawful for a party, daily, to help the wife or servont to become intoxicated, to the loss and damage of the husband or master ? When such a case arises it will be necessary to consider it more fully, and to determine it; but if it should be found to be lawful, it would not aid much in the determination of this case, in favor of the defendant.

The sale of laudanum as a beverage is very uncommon. It is well known to be poisonous. It cannot be used as a beverage without impairing the physical and mental energies ; and this is generally well known, and it certainly is to all druggists. Suppose a druggist should clandestinely, three times a day, sell to a wife, to be then and there drahlc in his presence, and having every reason to believe that it was against the consent and will of the husband, four ounces of laudanum, amounting in the whole to twelve ounces per day, and should continue to do so for the term of nine months, seeing and knowing during all that time that it was destroying her intellect,- impairing her health, and inflicting injury upon the husband; is it possible that the law would afford no redress to the party aggrieved, or would it be any justification that the wife desired it? or, that it was her hand that held the potion to her lips ? The druggist, by the act of handing it to her for that purpose, is as much responsible for the consequences as though he assisted her directly in pouring it down her throat. If this were an action for negligence of the defendant, negligence of the wife would prevent the plaintiff from recovering, on the ground that her negligence contributed to the injury; but it is a case where the druggist and wife united in the doing of acts injurious to the interests of the husband. In my judgment it might as well be said, if a stranger and a servant conspired together to injure the property of the master, the stranger furnishing the means and the servant alone using them in inflicting the injury, that the master cannot recover of the stranger, because his act is not the immediate one in producing it. The action in such case would lie against the stranger, because he acted in concert with the servant, and because his act aided in the consummation of the injurious act.

In this ease, the wife and defendant united and acted in concert, in doing the wrong complained of, and if the defendant had performed his duty to the plaintiff, by informing him what they were doing, the result which was reached would have been prevented.

If one arms another with a weapon to be used by him upon the person of a third, and it is so used, the one furnishing it is a participator in the whole transaction; and liable for the result, although not present when it was accomplished, and notwithstanding the person to whom the weapon was furnished might, for aught he knew, finally resolve not to use it. If one furnishes the means, with the knowledge that it is to be unlawfully used, assenting to such use, he is answerable for the consequences, if the design is carried out.

It is said by the counsel for the defendant, that in general, to maintain a claim for special damages, they must appear to be the legal and natural consequences of the wrong complaind of, and proceeding exclusively from that, and not from the improper act of a third person, remotely induced thereby. (Crain v. Petrie, 6 Hill, 522.) The rule as laid down was properly applicable to that case, but I cannot see how it aids this defendant. In this case the wife of the plaintiff occupied no such relation to the defendant as was there meant by the term third person. Nor was she remotely induced by the act of the defendant to take the injurious drug. They were associated together and acting in concert in the commission of the wrong, she being induced by the desire for the exhilaration produced by the use of it, and he by the desire of gain, and his was no remote act. The law regards each sale (under the circumstances proved) as one and the same transaction; as much as though each sale and use had been at the same instant of time.

There are no decisions upon any case identically the same as the one under consideration. It does not however prove, because the ease is new, that the action cannot be maintained. The action is adapted to every special invasion of one’s rights. (1 Comyn's Dig. title Action, A, note 1. 4 Burr. 2345.) And it is no objection to an action, that it is new, in the instance, if it be not new in its principle. (1 Comyn’s Dig. supra, and note 1. 3 Term. Rep. 63. 2 Maule & Sel. 405.) In Burrow’s Reports, (supra,) it is said: “ It is clear to me, that though the above was such a species of property as was then not properly known to, or at least not established by, precedent at common law, yet the novelty of the question did not bar it of the common law remedy and protection. * * * That the person invading it had nothing to do with it, and that he erred against the rules of morality and justice, in disturbing another’s possession or pleasure.” * * * The common law Being founded on such principles as have been laid down * * “ the remedy by action upon the case is suited to every wrong and grievance that the subject may suffer from a special invasion of his right; for this sort of action varies, says Lord Coke, according to the variety of the case.”

An action is maintainable by the owner of a dog, against one who puts poisoned food where he knows the animal will pass along and get it, (Dodson v. Mack, 4 Dev. & Batt. N. C. Rep. 146,) and yet the act of the defendant did not necessarily cause the death of the dog, nor could the defendant have known that it would, for he could not know with certainty, nor was it certain, that the dog would pass the place, or if he did that he would discover or would eat the poisoned food. Yet the act of the defendant in that case was not deemed to be too remote.

There was in that case no collusion, and no certainty that the injury would be produced;. in this there was both. The defendant knew the drug would be taken by the plaintiff’s wife. He colluded with her for that purpose, and he knew that the effect would be injurious "to the interests of the plaintiff.

It is enough to entitle a party to an action, that the damage be closely connected with the injurious act complained of. (Comyn’s Dig., Action, B. 4, note l.)

There are a variety of acts of third persons for which a husband can maintain an action, though his wife unites in the immediate act causing the injury; as where a man entices a wife away from her husband, or harbors her, she having left him without cause. (Reeve’s Dom. Rel. 139.) In an action for criminal conversation with the wife, the action is founded upon the alienation of the affections of the wife from the husband, rendering her unfit for his society, and exposing him to shame, ridicule, and the hazard of maintaining spurious issue. (Reeve’s Dom. Rel. 139.) And' in such ease he can maintain the action, whether the defendant by artful means seduces the wife, or she consents readily to his base proposals, or if she herself first proposes the criminal intercourse. It is enough if the defendant is an actor in producing the injury to the plaintiff; and which of them is the seducer, is material only upon the question of damages.

I think the rule is general, “ that he who knowingly assists the wife in the violation of her duty, as such, is guilty of a wrong for which an action will lie, where injury is thereby inflicted upon the husband.” (Barnes v. Allen, 30 Barb. 668, per Lott, J.)

In the language of the counsel for the plaintiff, “ his wife did not apply for the laudanum of the defendant, as a mediciné, .and he knew it; it was not intended to be used as a medicine, and he-knew it; she was violating her duty to her husband in purchasing and using the drug; violating her duty to her family, and destroying her health, and the defendant knew it. He aided her,' and furnished her with the means of doing all this. The very sale to her of the poison, and the using of it as she did, destroyed her volition, and-so perverted her judgment that she had no moral power to resist the temptation to continue its use. This habit, so resistless in its tyranny, was the sequence of the sale of the drug to her, by the defendant, and he knew it. He was, in fact, for a portion of the time, selling it to a morally insane person, whose insanity was caused by his own wrong. And I may add that the proof shows, by his own declarations, that he sold it to be used by her, when he believed she was not in her right mind. He continued to sell it to her, and kept it secret from the plaintiff*. He acted in bad faith towards him, and his acts having contributed largely to the injury complained of, he is liable.

On the trial, the plaintiff proved that the defendant did not affix labels to the phials in which the laudanum was taken from his store, although the defendant objected to the evidence, on the ground that it was incompetent, and in due time excepted. I think the ruling was right. If for no other purpose, it was competent as tending to prove the clandestine manner of selling, which was claimed in the complaint.

The question put by the plaintiff’s counsel to Doctor Grafton, “ In your judgment, speaking from your experience as a physician and surgeon, what would the natural result of three of these bottles of opium, called laudanum, be upon Mrs. Hoard, as you know the woman, and her situation and constitution, and all that?” The defendant’s counsel objected to the question as incompetent, because the question assumed that she took the whole of it as a beverage or medicine; that the plaintiff should be required to show it was taken, and also all the uses that laudanum maybe put to. The court overruled the objection, and admitted the answer, and the defendant’s counsel excepted. The witness answered the question. Hothing can be clearer, upon authority, as well as upon principle, than that the question was proper. If it had" been' based upon the evidence which had then been given, there is good ground for holding that it should have been excluded; because the witness would have been called upon to determine as to the truth or falsity of all of the evidence; and he would have, also, to found his conclusions as to the effect to be given to it, both of which belonged exclusively to the jury; while in the form in which the question was put, if the jury found that the facts proved did not warrant’ any or all of the assumptions of the hypothetical question, they would treat the answer of the doctor as not relevant to the case. The true rule is to state a hypothetical case to the witness. (Lake v. The People, 1 Park. Crim. Rep. 495; same case, 2 Kern. 358, and The People v. Thurston, 2 Park. Crim. Rep. 49.)

There was no error in the refusal of the court to charge that “ if the defendant sold the laudanum as other druggists did, in the ordinary course of his business, as a beverage, he is not liable for the improper use of it by the purchaser;” or that “if the jury believe the plaintiff’s wife obtained laudanum from other sources than of the defendant, and took the same into her system, the defendant is not responsible;” or that “ the defendant cannot be made liable because of mere knowledge of the use of the drug, by the plaintiff’s wife, as a beverage.”

I shall not discuss these questions further than to say that the judge had already charged the jury fully, and had submitted to them the same propositions above stated, with the proper qualifications. And the jury could not possibly be misled by anything contained in the charge; and as a whole, including the refusal to charge, I have no doubt that it was correct.

To that portion of the charge authorizing the jury to give punitive damages, in case they found the defendant had acted in bad faith in the sale of the laudanum, there was no exception, and the question is now raised for the first time.

I think the charge was correct. But the question is not merely whether it was correct or not; but in order to affect our decision, (there being no exception,) it must appear, not only that it was wrong, but that it influenced the verdict; and it is sufficient to say that, as compensatory, merely, the damages were not' excessive, but were well warranted by the injury proved. The defendant was not injuriously affected by ttíe charge, and we cannot set it aside, even if erroneous.

The order of the special term denying a new trial should be affirmed, and judgment entered for the plaintiff.

Bacon and Mullin, JJ., concurred.