Victory Sparkler & Specialty Co. v. Price

^* Corpus Juris-Cyc. References: Costs, 15CJ, p. 226, n. 13; p. 227, n. 29; Negligence, 29Cyc, p. 480, n. 98; p. 481, n. 1; p. 492, n. 53; p. 495, n. 60; Poisons, 31Cyc, p. 897, n. 5 New. As to constitutionality, construction, and effect of statute prohibiting or regulation the sale of poisons, see annotation in 30 L.R.A. (N.S.) 522; 9 R.C.L. 700; 2 R.C.L. Supp 858. On the question as to whether anticipation is an element of proximate cause, see annotation in 11 L.R.A. (N.S.) 684; 22 R.C.L. 121; 3 R.C.L. Supp. 1234; 4 R.C.L. Supp. 1456; 5 R.C.L. Supp. 1194; 6 R.C.L. Supp. 1316. I.H. Price, complainant in the court below, appellee here, filed his bill in the chancery court of Warren county against the Victory Sparkler Specialty Company, and against Vincent Cassino, and against N. and H. Abraham, and many debtors of the Victory Sparkler Specialty Company.

The bill alleged that on the 6th day of November, 1924, Price had filed a declaration in the circuit court, and finding he could not obtain jurisdiction, filed his bill and attachment in chancery, alleging that the Victory Sparkler Specialty Company was a manufacturer of an article of merchandise called "spit devils," an explosive of some kind, attractive to children, the ingredients of which were of a deadly poison; that said "spit devils" were not repulsive to the human taste, and, although same were deadly poison, they were not labeled or marked as required by the statutes of Mississippi.

The bill shows that appellant, hereinafter referred to as the company, was engaged in the manufacture of novelties and explosives, especially spit devils, and its factory was located at Elkton, Md.; that Cassino was a general agent in the vicinity of Vicksburg, and sold and distributed large quantities of spit devils and other fireworks; that said spit devils were inherently and imminently dangerous to human life and health, and were sold to the trade without being marked that they were dangerous to human life and health, and that said manufacturer had full knowledge that said spit devils would be sold and placed in the hands of children of tender years, who had not reached the age of discretion and who would be liable to place the spit devils in their mouths, which deadly poison would cause immediate suffering and death; that these spit devils were sold to Cassino, a wholesaler and jobber, who in turn sold them to N. and H. Abraham, who, on the 29th day of November, 1923, in the course of their business, placed a number of spit devils in the hands of Sidney Johnson Price, the late son of plaintiff, I.H. Price, who was four years of age, not having reached the age of discretion.

Sidney Johnson Price, on account of his tender age, did not know the spit devils were inherently and imminently dangerous, and would cause his death, that, while on his way from the store to the home on Pearl street, he placed one of the spit devils in his mouth, which caused the poisonous substance to dissolve, and, being absorbed, caused him to become immediately sick.

The declaration or bill further charged that, on account of this handling by the manufacturer and these agents of these spit devils, they were made attractive to Sidney Johnson Price, the minor son of plaintiff, and, on the date above stated, caused the death of said Sidney Johnson Price, and that the action of all the defendants was wrongful, gross, wanton, willful, and negligent.

There was a second count in the declaration in which practically the same facts were alleged, but the plaintiff based his cause of action upon the fact that the spit devils were not labeled "Poison" in accordance with section 1057, Hemingway's Code, and also in violation of section 1061 of said Code.

There was an answer on the part of Cassino, the wholesaler, denying liability, and also on the part of the Abrahams, and answers of many garnishees, some of whom admitted indebtedness. The Abrahams denied any knowledge as to the contents of the spit devils, liability for the acts of any other defendants, and likewise denied any indebtedness.

So far as necessary for us to set out the proof, it amounts to about this: That, on the day in question, the Abrahams were retail merchants doing business near the home of Mr. and Mrs. I.H. Price, the father and mother of Alton Price, nine years of age, and Sidney Johnson Price, four years of age. The mother testified that the evening before, Alton, the older boy, teased her about permitting him to purchase some spit devils at the Abrahams store, which she refused; that on the 29th the older boy told her that the Abrahams would give the spit devils to him if she would agree, and she finally consented, and he went to the store, and they were given to him. Her main objection was that she did not want to spend money for them. The children had them in the house, "popping" them, and Mrs. Price told them to go outside, being afraid of fire. It was demonstrated by Alton that there was no danger of fire from these spit devils; that the flashes were electrical in nature, at least were not calculated to start a conflagration.

At dinner time, about the noon hour, Sidney Johnson Price, aged four years, came to the table sick, and left the table, and, staying away longer than his mother thought he ought, she went and found him, and "he had vomited all over his clothes." "The substance from his stomach smelled like wet matches, and smoked like fire, and there were bits of red paper." Mrs. Price said the older boy told her he gave the spit devils to the younger boy which Abraham had given him as a treat because the Prices had paid their account.

It developed that the older boy, Alton, was not available as a witness, having died since the above sad occurrence from an accident, not connected with this case.

Mrs. Price's testimony was contradictory as to whether the little fellow said anything or not. In one place she said he was too sick, in another place she said he, meaning the little dead boy, said they, the spit devils, were sweet, and in another place, that he said they were good, and in another place, she said he could not talk. Mrs. Price gave the little fellow castor oil, but she testified he was not able to retain it. The children got the spit devils about 12 o'clock noon, and the younger child died somewhere about 1:30. Dr. Knox, the attending physician, ordered the child to be carried to the hospital, but it died before reaching the hospital, although prompt action was had.

Spit devils like the ones given by Abraham to the children contain yellow phosphorus, a very poisonous substance if taken internally. The "spit devils" eaten by the child in this case are described as a "small disc-shaped article about the size of a nickle and about one-eighth inch thick, wrapped in red paper; a mixture of carbonate of magnesia, red oxide, gum arabic, chloride of potash, and phosphorus, mixed with water, poured into molds, and allowed to dry, and then wrapped in red paper, packed one gross to a carton in sawdust." Notwithstanding the mother's statement as to the taste of the articles, we think there is no doubt from this record, but that the spit devils were unpleasant to the taste. Any mixture containing phosphorus would be repulsive.

The proof further showed that all fireworks such as Roman candles, fire crackers, etc., contain more or less phorphorus, and, if eaten by small children, would cause nausea and sickness, and probably death, yellow phosphorus being a very poisonous substance if taken internally by human beings; that the articles were manufactured and sold for the purpose of being used by all people, young and old, especially the former, who desire to thus celebrate the various holidays observed in our nation, such as Fourth of July, Christmas, and New Year. These spit devils make a popping sound, and emit sparks, the record shows, and we believe, would be especially attractive to children, and were not manufactured and sold as a food or as a medicine, and, up to the time of this tragedy in the Price home, although this company had been engaged in this business of manufacturing fireworks for a number of years, no death or serious accident had occurred, or come to their notice, and it had not come to their notice that any child had eaten or swallowed one of these spit devils. One case of an employee, undertaking to commit suicide by eating six of these spit devils, had come to their attention, but the would-be suicide failed of his purpose.

Soon after the mother discovered the child's illness she, on two occasions, undertook to give it castor oil. The physicians, examined in this case as experts, agreed that castor oil would dissolve the phorphorous, hastening its absorbability, and increasing its poisonous effect upon the human system, and it seems to be agreed that castor oil aids the poisonous effect of yellow phosphorus, and is not given by the leading physicians for this character of poisoning. It was shown that, in its correspondence with its customers, the Victory Sparkler Specialty Company used a letter head under which was a picture of a little child and the word "Safe" in large type. It is also shown that, before this accident, there was no mark or other sign of any kind on the carton in which the spit devils were sold, and neither was there any mark or sign on the spit devils themselves, that the contents were poisonous and dangerous if taken into the human stomach by ingestion, and that, since this suit was instituted, the company had placed on the carton containing these spit devils the word "Poison."

There was also sent up with the record an original medical journal containing an article on "Phosphorus Poisoning in a Child from the Ingestion of Fireworks," by Hugh L. Dwyer, M.D., and Ferdinand C. Helwigs, M.D., of date April 25, 1925, showing several cases of yellow phorphorus poisoning occasioned by spit devils, sons of guns, and devil on the walks, with treatments and experiments on dogs, and a summary. Dr. Bonelli, an expert witness for the manufacturing company, testified that this article was true, and thereupon the whole article was offered and admitted in evidence over the objection of defendant. We shall not advert to the article, because we cannot understand how it has a place in this record as competent testimony against the manufacturer.

It is undisputed in the record that, during the year of the child's death, the company manufactured and sold four hundred fifty thousand gross of spit devils, and had no complaint of injury to any person on account thereof.

We think we have here all of the salient facts of this unfortunate case. Many details are omitted because not necessary to be stated in view of the conclusion reached by us.

The chancellor discharged the defendants Cassino and the Abrahams, but held the Victory Sparkler Specialty Company liable to plaintiff in the sum of ten thousand dollars.

Appellant assigns many grounds of defense as an entire bar to recovery, in this action, for the death of this child; the main ones being: First, that these goods were not sold in Mississippi, but were sold f.o.b. Elkton, Md. Second, that spit devils are not inherently dangerous. Third, there was no causal connection between the manufacturer and the sale of the fireworks. Fourth, the said manufacturer made a business of marketing these spit devils for the purpose of being exploded, and not to be eaten. Fifth, that the company could not reasonably anticipate that children would put these spit devils in their mouths, chew and swallow the contents of the spit devils. Sixth, there was no privity of contract between the manufacturer and the consumer. Seventh, that there were four intervening causes of the injury to the child between the time of the manufacturer's negligence, if any, and the death of the child, as follows: (a) That the spit devils were given to a four-year-old child by a nine-year-old boy; (b) that the manufacturer could not reasonably anticipate that the four-year-old child would eat the spit devils, or put same to a use not intended by the manufacturer; (c) the mother allowed the four-year-old child to have the spit devils so that the child ate them; and (d) that the mother gave the child castor oil.

That count in the declaration based on sections 1057 and 1061, Hemingway's Code, cannot be invoked in this case, because section 1057 had reference to articles of medicine and regulating the sale of medicine by labels, etc., and section 1061 is as follows:

"Poisons — Not to Be Sold to Minors — A druggist, apothecary, or other person shall not sell or give away any poison to any minor, and for so doing he shall be punished as for a misdemeanor."

There can be absolutely no application to this case of these two statutes with reference to a sale of poisons usually sold by druggists or apothecaries, as they do not refer to a sale of fireworks and many hundreds of other articles in daily use, which, if taken into the stomach, would result in death or great bodily harm. As, for instance, there are many kinds of soap and concentrated lye, which, if taken into the mouth and ingested into the stomach, would occasion great suffering and perhaps death. So that we cannot broaden these statutes to apply to this character of fireworks, such as Roman candles, firecrackers, spit devils, son of guns, and devil on the walks, all of which contain more or less yellow phosphorus, and would endanger the health of people who took them into the stomach through the mouth by ingestion.

The serious objections to the evidence offered in this case on the several points will not be noticed, because, in our judgment, the decree of the chancellor cannot be upheld, for the reason that the spit devils complained of in this case did not cause the death of the child by reason of the use of same as was intended by the manufacturer and those who sold them. No danger accrued to the child because of an improper explosion, or being burned on account of the negligence of the manufacturer, nor is it shown to be inherently and intrinsically dangerous when put to the use commonly accorded to such playthings, and neither can it be said that the manufacturer could reasonably anticipate that a small child would be attracted to take a spit devil into its mouth, masticate and swallow same, when it was heavily impregnated with yellow phosphorus. The attractive nuisance in this case would not be the fact that a small child would take spit devils into its mouth, but that it would be attracted to eat them as food after having taken them into its mouth.

No doubt most of us can remember those times first in our recollection when we had swallowed some article about the house, or on the playground, such as nickles, small marbles, etc., and the anxiety of our mothers, and the doses of castor oil and others of those blessed remedies, heroically administered; and, in our judgment, many an adventurous child has weathered that period of mischievous investigation only through the watchful care of a mother and a Supreme Overshadowing Providence.

Counsel for appellee make a mistake, in our judgment, in basing their case upon the fact that "the manufacturer knew that small children would be attracted to take the articles in their mouths," and not carrying it to where the nuisance would result in injury to a small child, and that it would be attractive to eat. We think the proof in this case shows that yellow phosphorus is not attractive to be eaten. Some stress is laid upon the fact that it was wrapped in red paper. This writer and all counsel know that all firecrackers we ever saw were wrapped in red or other attractive colored paper, but they were for the purpose of being exploded, and not to be used as food or medicine — "to shoot, not to eat."

If this manufacturer had manufactured and sold without any warning label, or other precautionary measure an article to be used as a food or medicine which contained yellow phosphorus, as in this case, and same had been taken by a small child, or other person, it being made attractive as a food, then said article would become intrinsically, inherently, and imminently dangerous, and such case would be placed in the long line of cases holding that one who sells and delivers to another an article, knowing at the time that same is dangerous to life or health when put to the intended use, without giving along therewith notice of the dangerous nature thereof, is held to be liable for any injurious result therefrom and the probable consequences of putting same to a use not intended. But this case does not fall within that class, for the reason that the spit devils were not manufactured and sold as articles of food or medicine, or to be taken into the stomach at all.

If, for instance, these spit devils had exploded because of negligence in construction, and there had been a resulting injury, and the manufacturer could have, or should have, foreseen the consequences of putting such goods upon the market, endangering the life or health of children or others thereby, then the cases cited by appellee, and no doubt adopted by the court below, would be effective here to sustain this decree. But we are persuaded that the manufacturer could not have foreseen that a small child, such as would be intrusted with spit devils, would not only take them into its mouth, but would eat and swallow them, and, in the next place, it is clear to us that as a matter of common sense these spit devils were not put to the use intended by the manufacturer when he sent these goods out to the public, and that it was not intended, and they were not made attractive to be eaten and ingested by a small child.

Counsel for appellee cites Binford v. Johnson, 82 Ind. 426, 42 Am. Rep. 508, where defendant sold to two boys, ten and twelve years old, cartridges with powder therein, well knowing the dangerous character of the same, and the older boy laid down the pistol with one cartridge in it, and the younger boy picked it up and discharged it, inflicting a wound on the other boy, from which he died. It was there held that the complaint so charging was good on demurrer, and it was further held that the person who so places in the hands of children dangerous explosives is guilty of an actionable wrong. Mr. Justice ELLIOTT reasons out the liability of those who place dangerous articles in the hands of small children, attracting them thereby to become injured, and further that the intervention of other parties does not preclude a recovery, citing the celebrated Squib case of Scott v.Shepherd, 2 W. Black, 897, firmly establishing the rule that the original wrongdoer may be held responsible, even though there be an intervening agency, the second wrongdoer, and also citingCarter v. Towne, 98 Mass. 567, 96 Am. Dec. 682, and many other cases.

In all the cases cited, there is no effort to hold the manufacturer liable, or any case made out where an explosive article is eaten instead of doing injury by its explosion.Carter v. Towne, supra, is a case where the court held that one who sells and delivers gunpowder to a child of tender age, knowing that the child had neither experience nor knowledge of its use, and was an unfit person to be intrusted with it, is responsible for the injury sustained by the child on account of the explosion of the gunpowder, in ignorance of its effect and use, and this is true, although the vendor was licensed to sell the gunpowder. Justice GRAY cited three English cases and appealed to the well-established rule laid down by Lord ELLENBOROUGH in Townsend v. Wathen, 9 East, 280, as follows: "Every man must be taken to contemplate the probable consequence of the act he does." The antithesis might be stated that no man is held to contemplate the improbable consequence of the act he does. There might be isolated exceptions to the rule thus stated.

Counsel for appellee also cites cases in Mississippi in which injuries occurred from the use of electricity on uninsulated wires, especially the cases of Spengler v. Williams, 67 Miss. 1, 6 So. 613; Temple v. McComb City, 89 Miss. 1, 42 So. 874, 11 L.R.A. (N.S.) 449, 119 Am. St. Rep. 698, 10 Ann. Cas. 924, andPotera v. City of Brookhaven, 95 Miss. 774, 49 So. 617, in which the liability was based upon the fact that small children should be protected from deadly currents negligently permitted to be in the open where children were likely to go, and, on account of their tender years, were not old enough to fully appreciate the death-dealing danger lurking in the wires charged with electricity, and in other cases cited, where the court held that appellant, who set in motion a dangerous agency, would be charged with knowledge of the venturesomeness of young boys, and would be held liable for negligence in piling timber so as to create a death trap for small children.

In our opinion, none of these cases in Mississippi have application here, because in the instant case the injury was one unusual in its nature, and the articles were not manufactured for food purposes, nor could the manufacturer have foreseen that small children would ingest these poisonous substances. Neither could the manu facturer have known that they would be put to this abnormal, unusual use, not anticipated nor intended by the manufacturer.

Notwithstanding our sincere sympathy for these stricken parents, we think we are not allowed to yield to that natural sentiment and allow damages to those thus stricken in an abnormal, unusual case, which we shall term an unfortunate misadventure, which could not have been reasonably anticipated, nor could it be said that the spit devils were put to the use intended by appellant; and the ingredients of the spit devils, wrapped in attractive red paper, were not such as to attract even a small baby to eat and swallow yellow phosphorus.

We think we are fully sustained in the view thus taken after examination of authorities with the diligent aid of counsel on both sides of this case. The rule is, as heretofore stated, and in which we are sustained by the following citation from Corpus Juris, and the authorities there cited 24 R.C.L. p. 507, section 800:

"It is well established that one who sells and delivers to another an article which he knows to be dangerous or noxious, without giving notice of its perilous qualities and nature, is liable for an injury that may result therefrom to the buyer."

And the general rule applicable to this case is found in 22 R.C.L., p. 121, section 8, as follows:

An injury that is the natural and probable consequence of an act of negligence is actionable, and such an act is the proximate cause of the injury. But an injury which could not have beenforeseen nor rea sonably anticipated as the probable result of anact of negligence is not actionable (italics ours), and such an act is either the remote cause, or no cause whatever, of the injury."

And in 24 R.C.L., section 800, it is held:

"If the dealer knows that the article is inherently or imminently dangerous, or is highly explosive, or if he conceals or misrepresents its qualities, or warrants or represents it to be safe for the use intended, when it is not, there is no reason why he should not be held chargeable with reasonable and proximate consequences of his act in selling it without notice of the danger in its use." (Italics ours.)

And in 24 R.C.L., section 801, it is held:

"If a dealer or merchant, whether he be a wholesale dealer, or a retail dealer, or the original buyer of the article, or the person who makes the sale to the consumer, knows that the article is inherently or imminently dangerous in the use for which it is intended, because of its inflammable or explosive qualities, it is his duty to label or mark the package containing the article in such a way as to indicate its dangerous contents." (Italics ours.)

We are of the opinion that the plaintiff appellee can not recover in this case, and that the decree of the court below should have been for the appellant.

Reversed, and judgment here for appellant.

Reversed.

ON MOTION TO CORRECT DECREE. Appellant, the Victory Sparkler Specialty Company, moves the court for a decree against the sureties on appellee's cost bond given in this cause in the chancery court, and for an order to direct that all costs accrued in this court be taxed against the appellee, I.H. Price, and the sureties on his bond.

In the lower court, appellee, I.H. Price, executed and filed a cost bond in the sum of two hundred fifty dollars, with two sureties thereon, the applicable stipulations thereof being as follows:

"Now, if the said I.H. Price, principal herein, and his sureties, shall pay all costs that may be adjudicated against him in this case, and shall otherwise discharge all of the requirements of the court, then this obligation shall be null and void; otherwise, it shall remain in full force and effect."

The decree of the court below awarded damages in the sum of ten thousand dollars to appellee against appellant, the Victory Sparkler Specialty Company, who prosecuted an appeal to this court, and at this term of the court, on January 10, 1927, this court reversed the decree of the court below, and rendered a decree here dismissing complainant's bill. In the prosecution of the suit it was necessary for appellant to present its cause here in order to be freed from the erroneous judgment entered against it in the lower court. Section 650, Hemingway's Code (section 941, Code of 1906), is as follows:

"Security for costs may be given by recognizance entered into in open court, or by written undertaking indorsed on or filed with the papers in the cause, or by a deposit with the clerk of the court of the amount in cash or a certified check on any solvent bank in this state, and the judgment, when rendered against the plaintiff or complainant, shall be rendered against the surety, as well as against the principal or complainant, and execution may be issued as in other cases for all costs for which the plaintiff or complainant may be liable in the cause."

By the reversal of the decree, the complainant in the court below became liable for the costs accrued therein, and the costs accrued here. This question was before the court in the case ofMartin v. Kelly, 59 Miss. 652, wherein Chief Justice CAMPBELL, as the organ of the court, said:

"The surety for costs is liable for the costs accrued in the case in this court, to which the defendants below were compelled to resort to free themselves from the erroneous decree against them, which the complainant was enabled to obtain by means of the security for costs, but for which his case would have been dismissed. There is nothing in the statute, or the obligation assumed by the surety, limiting his liability to the costs of the court in which the suit was pending when the security for costs was given, and justice requires that he be held liable for all the costs accrued in the case and adjudged against his principal. That is the extent of his undertaking. Smith v. Lockwood,34 Wis. 72; Traver v. Nichols, 7 Wend. (N.Y.) 434; Dunn v.Sutliff, 1 Mich. 24."

The motion in this case is sustained.