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lO THOMAS Z'. WINCHESTER



THOMAS r. WINCHESTER.
Court of Appeals of New York, 1852. 6 New York Appeals, 397.

RuGGLES, Ch. J. delivered the opinion of tlie court. This is
an action brought to recover damages from the defendant for neg-
ligently putting up, labelling and selling as and for the extract of
dandelion, which is a simple and harmless medicine, a jar of the ex-
tract of belladonna, which is a deadly poison; by means of which the
plaintiff Mary Ann Thomas, to whom, being sick, a dose of dande-
lion was prescribed by a physician, and a portion of the contents of
the jar, was administered as and for the extract of dandelion, was
greatly injured, &c.

The facts proved were briefly these: Mrs. Thomas being in ill
health, her physician prescribed for her a dose of dandelion. Her
husband purchased what was believed to be the medicine prescribed,
at the store of Dr. Foord, a physician and druggist in Cazenovia,
Madison county, where the plaintiffs reside.

A small quantity of the medicine thus purchased was admin-
istered to Mrs. Thomas, on whom it produced very alarming effects;
such as coldness of the surface and extremities, feebleness of circu-
lation, spasms of the muscles, giddiness of the head, dilation of the
pupils of the eyes, and derangement of mind. She recovered how-
ever, after some time, from its effects, although for a short time her
life was thought to be in great danger. The medicine administered
was belladonna, and not dandelion. The jar from which it was taken
was labeled "Yz lb. dandelion, prepared by A. Gilbert, No. 108, John-
street, N. Y. Jar 8 oz." It was sold for and believed by Dr. Foord
to be the extract of dandelion as labeled. Dr. Foord purchased the
article as the extract of dandelion from Jas. S. Aspinwall, a druggist
at Xew-York. Aspinwall bought it of the defendant as extract of
dandelion, believing it to be such. The defendant was engaged at
No. 108 John-street, New- York, in the manufacture and sale of
certain vegetable extracts for medicinal purposes, and in the purchase
and sale of others. The extracts manufactured by him were put
up in jars for sale, and those which he purchased were put up by
him in like manner. The jars containing extracts manufactured by
himself and those containing extracts purchased by him from others,
were labeled alike. Both were labeled like the jar in question, as
"prepared by A. Gilbert." Gilbert was a person employed by the
flefendant at a salary, as an assistant in his business. The jars were
labeled in Gilbert's name because he had been previously engaged
in the same business on his own account at No. 108 John-street, and
probably because Gilbert's labels rendered the articles more salable.
The extract contained in the jar sold to Aspinwall, and by him to
Foord, was not manufactured by the defendant, but was purchased
by him from another manufacturer or dealer. The extract of dan-
delion and the extract of belladonna resemble each other in color,
consistence, smell and taste ; but may on careful examination be dis-
tinguished the one from the other by those who are well acquainted
with these articles. Gilbert's labels were paid for by ^^'inchester
and used in his business with his knowledge and assent.



THOMAS f. WINCHESTER 3II

The defendants' counsel moved for a nonsuit on the following
grounds: [inter alia.]

1. That the action could not be sustained, as the defendant was
the remote vendor of the article in question : and there was no con-
nection, transaction or privity between him and the plaintiffs, or
either of them.

2. That this action sought to charge the defendant with the con-
sequences of the negligence of Aspinwall and Foord.

4. That according to the testimony Foord was chargeable with
negligence, and that the plaintiffs therefore could not sustain this
suit against the defendant: if they could sustain a suit at all it
would be against Foord only.

The judge overruled the motion for a nonsuit, and the defend-
ant's counsel excepted.

The judge among other things charged the jury, that if they
should find from the evidence that either Aspinwall or Foord was
guilty of negligence in vending as and for dandelion, the extract
taken by Mrs. Thomas, or that the plaintifif Thomas, or those who
administered it to "Sirs. Thomas, were chargeable with negligence
in administering it, the plaintiffs were not entitled to recover; but
if they were free from negligence, and if the defendant Winchester
was guilty of negligence in putting up and vending the extracts in
question, the plaintiffs were entitled to recover, provided the extract
administered to Mrs. Thomas was the same which was put up by
the defendant and sold by him to Aspinwall and by Aspinwall to
Foord. That if they should find the defendant liable, the plaintiffs
in this action were entitled to recover damages only for the personal
injury and suft'ering of the wife, and not for loss of service, medical
treatment or expense to the husband, and that the recovery should
be confined to the actual damages suffered by the wife.

The case depends on the first point taken by the defendant
on his motion for a nonsuit ; and the question is, whether the de-
fendant, being a remote vendor of the medicine, and there being
no privity or connection between him and the plaintiff's, the action
can be maintained.

If, in labeling a poisonous dmg with the name of a harmless
medicine, for ])ublic market, no duty was violated by the defendant,
excepting that which he owed to Aspinwall, his immediate vendee,
in virtue of his contract of sale, this action cannot be maintained. If
A. build a wagon and sell it to B., who sells it to C. and C. hires it
to D.. who in consc(|uence of the gross negligence of A. in building
the wagon is overturned and injured, D. cannot recover damages
against A., the builder. A.'s obligation to build the wagon faith-
fully, arises solely out of his contract with R. The public have
nothing to do with it. Misfortune to third persons, not parties to
the contract, would not be a natural and necessary consequence of
the builfler's negligence: and such negligence is not an act immi-
nently dangerous to human life.

So. for the same reason, if a horse be defectively shod by a
smith, and a person hiring the horse from the owner is thrown and
injured in consefiuence of the smith's negligence in shoeing; the
smith is not liable for the injury. The smith's duty in such case



512 THOMAS V. WINCHESTER

grows exclusively out of his contract with the owner of the horse;
it was a duty which the smith owed to him alone, and to no
one else.^ And although the injury to the rider may have happened
in consequence of the negligence of the smith, the latter was not
bound, either by his contract or by any consideration of public
policy or safety, to respond for his breach of duty to any one except
the person he contracted with.

This was the ground on which the case of Winterhottom v.
Wright, {lo Mccs. & Welsh. 109,) was decided. A. contracted with
the postmaster general to provide a coach to convey the mail bags
along a certain line of road, and B. and others, also contracted
to horse the coach along the same line. B. and his co-contractors
hired C, who was the plaintiff, to drive the coach. The coach, in
consequence of some latent defect, broke down ; the plaintiff was
thrown from his seat and lamed. It was held that C. could not main-
tain an action against A. for the injury thus sustained. The reason
of the decision is best stated by Baron Rolfe. A.'s duty to keep
the coach in good condition, was a duty to the postmaster general,
with whom he made his contract, and not a duty to the driver em-
ployed by the owners of the horses.

But the case in hand stands on a different ground. The de-
fendant was a dealer in poisonous drugs. Gilbert was his agent
in preparing them for market. The de ath o r_ great bodily har m of
some person A\'as the natural and alliiost inevitable consequence of
the sale 6T"6^adonna by means of the false label. ^^^^^^i^c^^^*^ **'^'

Gilbert, the defendant's agent, would have been punishable for
manslaughter if Mrs. Thomas had died in consequence of taking the
falsely labeled medicine. Every man who, by his culpable negli-
gence, causes the death of another, although without intent to kill,
is guilty of manslaughter. (2 R. S. 662, § 19.) A chemist who
negligently sells laudanum in a phial labeled as paregoric, and thereby
causes the death of a person to whom it is administered, is guilty
of manslaughter. {Tessymond's case, i Lezvins Crozvn Coses, 169.)
"So highly does the law value human life, that it admits of no justi-
"fication wherever life has been lost and the carelessness or negli-
"gence of one person has contributed to the death of another. (Re-
gina v. Szvindall, 2 Car. & Kir. 232-3.) And this rule applies not
only where the death of one is occasioned by the negligent act of
another, but where it is caused by the negligent omission of a duty
of that other. (2 Car. & Kir. 368, 371.) Although the defendant
Winchester may not be answerable criminally for the negligence of
his agent, there can be no doubt of his liability in a civil action, in
which the act of the agent is to be regarded as the act of the prin-
cipal.

In respect to the wrongful and criminal character of the neg-
ligence complained of, this case differs widely from those put by the
defendant's counsel. No such imminent danger existed in those
cases. In the present case the sale of the poisonous article was made
to a dealer in drugs, and not to a consumer. The injury therefore
was not likely to fall on him, or on his vendee who was also a dealer ;

*But see Fitzherbert Abr. Tresp. sur le case, 94 D., ante p. 132 and note I.



THOMAS Z'. WINCHESTER S^3

Init much more likely to be visited on a remote purchaser, as
actually happened. The defendant's negligence put human life in
imminent danger. Can it be said that there was no duty on the part
of the defendant, to avoid the creation of that danger by the exer-
cise of greater caution? or that the exercise of that caution was a
duty only to his immediate vendee, whose life was not endangered?
The defendant's duty arose out of the nature of his business and
the danger to others incident to its mismanagement. Nothing but
mischief like that which actually happened could have been ex-
pected from sending the poison falsely laljcled into the market;^
and the defendant is justjy responsible for the probable conse-
quences of the act. The duty of exercising caution in this respect
did not arise out of the defendant's contract of sale to Aspinwall.
The wrong done by the defendant was in putting the poison, mis-
labeled, into the hands of Aspinwall as an article of merchandise
to be sold and afterwards used as the extract of dandeloin, by some
person then unknown. The owner of a horse and cart who leaves
them unattended in the street is liable for any damage which may
result from his negligence. {Lynch v. Nurdin, i Ad. & Ellis, N. S.
29; Illidge v. Goodzi'in, 5 Car. & Payne, 190.) The owner of a
loaded gun who puts it into the hands of a child by whose indis-
cretion it is discharged,. is liable for the damage occasioned by the
discharge. (5 Manic & Scl. 198.) The defendant's contract of
sale to Aspinwall does not excuse the wrong done to the plaintiffs.
It was a part of the means by which the wrong was effected. The
plaintiff's' injury and their remedy would have stood on the same
principle, if the defendant had given the belladonna to Dr. Foord
without price, or if he had put it in his shop without his knowledge,
under circumstances which would probably have led to its sale on
the faith of the label.

In Longmeid v. Holliday, (6 Law and Eq. Rep. 562,) the dis-
tinction is recognized between an act of negligence imminently dan-
gerous to the lives of others, and one that is not so. In the former
case, the party guilty of the negligence is liable to the party in-
jured, whether there be a contract between them or not; in the lat-
ter, the negligent party is liable only to the party with whom he
contracted, and on the ground that negligence is a breach of the
contract.

The defendant, on the trial, insisted that Aspinwall and Foord
were guilty of negligence in selling the article in question for what
it was represented to be in the label; and that the suit, if it could
be sustained at all, should have been brought against Foord. The
judge charged the jury that if they, or either of them, were guilty
of negligence in selling the belladonna for dandelion, the verdict
must be for the defendant: and left the question of their negligence
to the jury, who found on that point for the plaintiff'. If the case

*In Hcizer v. Kingsland etc. Co., no Mo. 605 (1892), Black, J., says, p.
615, "In these cases [Thomas v. Winchester and Norton v. Sezi-all, infra n. 3]
the articles sold were necessarily and inherently dangerous to human life, and
they did not bv their color or otherwise disclose their dangerous character,
and, hence, the' duty on the part of the vendor to make known to the vendee
their true nature."



514 THOMAS c'. ^V1^■CHEST1£R

really depended on the point thus raised, the question was properly
left to the jury. But 1 think it did not. The defendant, by affixing
the label to the jar, represented its contents to be dandelion ; and to
have been "prepared" by his agent Gilbert. The word 'prepared'
on the label, must be understood to mean that the article was manu-
factured by him, or that it had passed through some process under
his hands, which would give him personal knowledge of its true
name and quality. Whether Foord was justified in selling the
article upon the faith of the defendant's label, would have been an
open question in an action by the plaintiffs against him, and I wish
to be understood as giving no opinion on that point.^ But it seems to
me to be clear that the defendant cannot, in this case, set up as a de-
fense, that Foord sold the contents of the jar as and for what the
defendant represented it to be. The label conveyed the idea dis-
tinctly to Foord that the contents of the jar was the extract of dan-
delion ; and that the defendant knew it to be such. So far as the
defendant is concerned, Foord w'as vmder no obligation to test the
truth of the representation. The charge of the judge in submitting
to the jury the question in relation to the negligence of Foord and
Aspinwall, cannot be complained of by the defendant.

Gardiner, J. concurred in affirming the judgment, oh the
ground that selling the belladonna without a label indicating that
it was a poison, was declared a misdemeanor by statute; (2 R. S.
694, § 23;) but expressed no opinion upon the question whether,
independent of the statute, the defendant would have been liable to
these plaintiffs.*

Gridley, J. was not present when the cause was decided. All
the other members of the court concurred in the opinion delivered
by Ch. J. RuGGLES.

Judgment affirmed.

' A druggist, selling a drug in the unbroken original package on the faith
of the label of a reputable manufacturer, is not guilty of negligence in not
breaking the package in order to satisfy himself as to its true character.
Howes V. Rose, 13 Ind. App. 674 (1895) semble; nor is he negligent in selling
without analysis a patent medicine, though not in unbroken packages, called
for by his customers, West v. Emanuel, 198 Pa. 180 (1901). But when the
drug is a common one and not a secret preparation, and the original package
is broken and its contents handled and sold in small quantities, the druggist
having had the opportunity of observing the nature of the drug is bound to
exercise care proportionate to the danger to ascertain if it is what it purports
to be, Howes v. Rose, supra.

Druggists are required to use "the highest degree of care known to
practical men", Hoives v. Rose, supra; Walton v. Booth, 34 La. Ann. 913
(1882) ; Peters v. Johnson & Co., 50 W. Va. 644 (1902) ; or what is much the
same thing, a care proportionate to the danger, Beckwith v. Oatman, 43 Hun
26=; (N. Y., 1887): though in Simonds v. Henry, 39 Me. 155 (1855) only
ordinary care is said to be required (semble).

* Accord: Davis v. Gnarnieri, 45 Ohio 470 (1887). oil of bitter alrnonds
sold by retail druggist in mistake for oil of sweet almonds — taken by wife of
purchaser; Peters v. Johnson & Co., 50 W. Va. 644 (1902), similar facts;
Norton v. Sewell, 106 Mass. 143 (1870), laudanum sold for rhubarb, taken by
I'urchaser's servant; Darks v. Scudder-Gale Grocery Co., 146 Mo. App. 24';>
(1910), ginger extract containing wood alcohol in poisonous quantities, sold
zs medicine; Burk v. Creamery Package Mfg. Co., 126 Iowa 730 (1905), sul-
phuric acid sold in unlabellcd "bottle, purchaser put it on the shelf with othc"
bottles containing buttermilk, and by mistake sold it as buttermilk to the
plaintiff, who drank it and died; Osborne v. McMasters, 40 Minn. 103 (1889),
semble: Fisher v. Golladay, 38 Mo. App. 531 (1889) ; Heizer v. Kingsland, etc.,
Co., 110 Mo. 605 (1892), p. 615, semble: McCaffrey v. Mossberg, etc., Co., 23
R. I. 381 (1901), semble. Where a druggist sells poison improperly labelled or



GEORGE v. SKIVINGTON 515

GEORGE V. SKIVINGTON.

In the Court of Exchequer, 1869. L. R. 5 Exch. i.

Kelly, C. B. — i am of opinion that our judgment should be
for the plaintiffs. The facts alleged by the declaration are shortly
these; — that the plaintiff, Joseph George, purchased a chemical
■compound of the defendant as a hair wash for the use of his wife,
which was made up of ingredients known only to the defendant, and
by him represented to be "fit and proper to be used for washing
the hair;" and there is also an express statement that the defendant
knew the jnirpose for which the article was bought. The declaration
further alleges that the defendant "so unskilfully, negligently, and
improperly conducted himself in and about selling and making
the said compound" as to cause the damage complained of to the
female plaintiff. Now, under these circumstances, the question is
whether an action at the suit of the plaintiff', ICmma George, her
husband being joined for conformity, will lie. It is contended that
it will not. There was no warranty, it is said, either express or
implied, towards the purchaser himself. But it is not necessary to
enter into that question, because the contract of sale is only alleged
by way of inducement, the cause of action being, not upon that con-
tract, but for an injury caused to the wife of the purchaser by reason
of an article being sold to him for the use of his wife, and so sold
to the defendant's knowledge, turning out to be unfit for the purpose
for which it was bought. There is, therefore, no question of war-
ranty to be considered, but w'hether the defendant, a chemist, com-
pounding the article sold for a particular purpose, and knowing of
the purpose for which it was bought, is liable in an action on the
case for unskilfulness and negligence in the manufacture of it where-
by the person who used it was injured. And I think that, quite apart
from any question of warranty, express or implied, there was a
duty on the defendant, the vendor, to use ordinary care in compound-
ing this wash for the hair. Unquestionably there was such a duty
towards the purchaser, and it extends, in my judgment, to the per-
son for whose use the vendor knew the compound was purchased.
In Langridge v. Levy, 2 M. & W. 519, in Ex. Ch. 4
M. & W. 337 ; the defendant sold a gun to the plaintiff's
father for the use, to his knowledge, of the plaintiff', and
it was held that a duty arose towards the plaintiff' that the gun
should be safe ; and here a similar duty arose towards the person who
was known to the defendant to be about to use this wash ; namely,
a duty that the article sold should be reasonably fit for the purpose



without any label, the negligence of the immediate vendee or his knowledge
of the real nature of the drug sold will not defeat the right of the consumer
to recover, Daz'is v. Cutiniicri, supra; Fisher v. Golladay. supra; in each case,
while a statute required poison to be labelled, the Court was of opinion that
at common law such sale was wrongful ; see as to sale, contrary to statute, of
gasolene in unmarked vessel. Izrs v. IVelden. 114 Iowa 476 (iqot), immediate
vendee's knowledge or negligence held immaterial where his daughter and
not he himself was injured; and see note 4. to Schubert v. Clark, ante p. 5U7.



5lO GEORGE r. SKIVINGTON

it was bought for and compounded with reasonable care. Under
these circumstances, there being in the declaration a direct allega-
tion of negligence and unskil fulness, our judgment ought to be for
the plaintiffs. With regard to Longmeid v. Holliday, 7 Ex. 761, that
case is entirely distinguishable, for there the jury found bona fides
and no negligence on the part of the vendor. Aly brother Channell ^
wishes me to add that he concurs in this judgment.

PiGOTT, B. — I am of the same opinion. The action is, in effect,
against a tradesman for negligence and unskilfulness in his business.
Such an action by the purchaser himself is clearly maintainable.
Then, where the thing purchased is for the use not of the purchaser
himself but, to the defendant's knowledge, of his wife, does the
defendant's duty extend to her? I can see no reason why it should
not. She cannot contract for herself alone, but that is no reason why
the defendant's duty should stop short of her. The case, no doubt,
would have been very different if the declaration had not alleged
that the defendant knew for whom the compound was intended.
Suppose, for example, a chemist sells to a customer a drug, without
any knowledge of the purpose to which it is to be applied, which
is fit for a grown person, and that drug is afterwards given by the
purchaser to a child and does injury, it could not be contended that
the chemist was liable. That, however, is widely different from
this case; for, here, there is an express allegation that the defendant
knew the purpose for which, and the person for whom, this com-
pound was bought.

Cleasby, B. — I also think the declaration shows a good cause of
action in the female plaintiff. No person can sue on a contract but
the person with whom the contract is made ; and this undoubted
proposition was attempted to be taken advantage of in Langridge
v. Levy, 2 M. & W. 519, in Ex. Ch. 4 M. & W. 337. The answer
was that, admitting the proposition to be true, still a vendor who
has been guilty of fraud or deceit is liable to whomsoever has been
injured by that fraud, although not one of the parties to the original
contract, provided at least that his use of the article was contem-
plated by the vendor. It was therefore held in that case that the
boy who used the defective gun, and for whose use the defendant
knew it was destined, had a good cause of action. Substitute the
word "negligence" for "fraud," and the analogy between Langridge
V. Levy and this case is complete. The real question is whether the
allegations in the declaration are sufficient to raise a duty towards
the female plaintiff". Now it is alleged that the defendant himself
manufactured this wash of ingredients known only to him, and
that he held it out and professed it to be of a certain quality, and
it was not of that quality ; and that he knew it was purchased for
the purpose of being used by the female plaintiff. Under the cir-
cumstances I think there was a duty imposed upon him to use due
and ordinary care, and of the breach of that duty I am of opinion the
female plaintiff, who was injured, can take advantage. The two



* Channell, B., had left the court at the close of the arguments.



BISHOP 7'. WEUER 517

things concur here; negligence and injury flowing therefrom. There
was, therefore, a good cause of action in the person injured similar
to that which was held to be good in I.angridge v. Levy.

Judgment for the plaintiffs.-



BISHOP V. WEBER.
Supreme Judicial Court of Massachusetts, 1885. 139 Mass. 411.

The declaration alleged that the plaintiff attended a ball, having
a ticket therefor; that the defendant, who was a caterer, was em-
ployed to cater for all who might attend the ball, and to furnish for
all who might wish, good and wholesome food, for a certain sum
to be paid therefor by each person who partook of the same; that
the defendant undertook an(l agreed to cater and to furnish good
and wholesome food at the ball to whomsoever wished and paid
therefor; that the defendant was himself present at the ball, and