Flaccomio v. Eysink

Thomas, J., delivered the opinion of the Court. This suit was brought in the Court below by TTeni’y P. Eysink against Vincent Elaccomio, Lee Sonneborn, trading as Lee Sonneborn & Company, and the Sherwood Distilling Company. ³⁶⁹ The amended declaration contains four counts. The first count charges, that “'on or about the 24th day of January, 1913, the said defendants, their agents and servants did illegally and unlawfully have, keep and offer for sale, and did sell to the said plaintiff a certain medicinal or chemical preparation or liquid intended for internal use, lo wit, whiskey, in which methyl or wood alcohol was used, placed or contained in the stead of spirit, grain or ethyl alcohol, so that said medicinal or chemical preparation or liquid intended for internal use, called or1 known as whiskey, was dangerous and harmful to he drunk or used internally, which said danger and harm was known or by the exercise of reasonable care could have been known to the said defendants, their agents and servants: that the said plaintiff did not know and was not warned or informed of the harmful or dangerous ingredient or substance contained in said whiskey or liquid, and lie. the said plaintiff, did drink the same, whereby, by reason of said harmful substance or ingredient in said whiskey or liquid the said plaintiff was caused to suffer great and permanent physical hurt and injury, and to lose (or impair) the faculty of seeing or sense of sight and became blind,” etc. The second count alleges that, the “defendants, their agents and servants, in making, manufacturing, mixing or compounding a certain medicine, medicinal or chemical preparation intended for internal use, to wit: AA'hiskev, did illegally and unlawfully substitute or use methyl or wood alcohol in the place and stead of spirit, grain or ethyl alcohol, so that said preparation or so-called whiskey or liquid Avas, and became so harmful and dangerous for internal use as to endanger the health of persons internally using the same (all of AA'hich the said defendants kneAv, or on account of the said substance being for internal use ought to have been known to the said defendants); that the said defendants, their agents or servants, did (intentionally, wrongfully and illegally offer for sale and sell or) fill certain bottles or glass receptacles with said substance or preparation and keep and offer the same for sale, and that on or about the 24th day of January, ³⁷⁰ 1913, the said plaintiff did innocently purchase certain of said preparation, and without knowledge or warning' as to the harmful or dangerous nature of the same, the said plaintiff did drink of said preparation to his great loss, injury and damage,” etc. The third count alleges that the defendants “did (tortiously) illegally and unlawfully and intentionally have, keep and offer for sale and. did sell to the said plaintiff a certain medicinal or chemical preparation or liquid intended for internal use, to wit: whiskey, in which methyl or wood alcohol was used, placed or contained in the stead of spirit or ethyl alcohol,” so that the said whiskey was dangerous <cto> he drunk or used internally,” and that the plaintiff, not knowing that it was dangerous, did drink of said whiskey and was greatly injured, etc. The fourth count avers that the defendants, “their agents and servants, made, had or kept and offered for sale a certain beverage, composition or mixture called or labeled whiskey, in the mixture or manufacture of which methyl or wood alcohol, which is of a dangerous and poisonous character so as to require great care in, its use and not to be used for internal purposes;, was (negligently, fraudulently and) wrongfully used in the place and stead of ethyl or grain or pure alcohol (a. much more expensive substance than methyl alcohol), and on or about the 24th day of January, 1913, a bottle or portion of said, so-called whiskey was sold to the said plaintiff for internal use,” and that the plaintiff “did use and drink” said mixture “without suspicion or knowledge of said danger” and by reason thereof became ill “and lost the sight of his eyes,” -etc. The defendants demurred to the declaration, and the demurrer having been overruled, the docket entries state, “pleas ‘did not commit the wrongs alleged’ were then entered short by all the defendants, and issue joined short.” There was a judgment of “non pros” as to the Sherwood Distilling Company which the appellee states in his brief was entered at the close of the plaintiff’s testimony, and this appeal is by ³⁷¹ the other defendants, Vincent Flaccomio and Lee Sonnehorn, from the judgment against them in favor of the plaintiff. The record contains one hundred and fifty-two exceptions.

One hundred and fifty-one of these relate to the rulings of the Court below on the evidence, and the remaining exception is to the overruling of special exceptions to the plaintiff’s second and seventh prayers; to the granting of those prayers, and to the rejection of certain prayers of the defendants. The first, second, third, fourth and fifth prayers of Flaeoomio, and the five prayers of Sonnehorn asked for instructions that- under the pleadings there was no. evidence in the ease legally sufficient to entitle the plaintiff to recover on any of the counts in the declaration. The Court below granted these prayers of the defendant Sonnehorn in reference to the first, second and third counts, but rejected bis prayers, denying the plaintiff’s right to recover on the fourth count. The Court also granted the1 prayer of Flaccomio in reference to the second count, but refused his prayers withdrawing the ease from the j ury on the first, third and fourth counts.

The ruling of the Court, on these prayers presents the important and controlling question in the case. The evidence produced at the trial, assuming that all of it was admissible, shows or tends to show, that in January, 1913, the defendant, Vincent Flaccomio, kept a saloon in Baltimore City at (120 Forrest street. The plaintiff, who at that time lived at 704 Fast Monument street, near the corner of Forrest and Monument streets, went to Flaeoomio’s saloon about seven o’clock in the evening of January 24th and asked for a half pint, of “Sherwood Whiskey” or “Sherwood live Whiskey,” and received from the bartender a half pint bottle labeled “Sherwood .Rye Whiskey.” He took the bottle to his home and he and several friends drank the contents. About a hour later, he went back to Flaccomio’s saloon and asked for another half pint of “Sherwood Whiskey” or “Sherwood Rye Whiskey” and the bartender gave him a half pint bottle labeled as the first bottle was, and be and bis friends eou ³⁷² sumed the contents of that bottle.

The following afternoon the plaintiff became quite sick and partially blind, and was finally taken to the Presbyterian Eye, Ear and Throat Hospital on the 4th of February, 1913, where he remained for about sixty days, under treatment for loss of sight. The physician who attended him at the hospital stated at the trial that his loss of sight was due to wood alcohol poison, and that he wonld not recover from the effects of it. For the purpose of showing that the whiskey he got from Elaocomio’s saloon contained wood alcohol, the plaintiff proved that several other bottles of Sherwood Whiskey purchased by different persons and at different times in February, 1913, from Flaceomio at his saloon on Forrest street contained thirty-five per cent, of wood alcohol. The record does not clearly show from whom Flaceomio got the whiskey that was sold to the plaintiff or the persons who purchased in February the bottles of whiskey containing thirty-five per cent, of wood alcohol.

At one point in his testimony Flaceomio stated that at that time he was buying whiskey from the defendant, Lee Sonnebom & Company, and from E. Bruce & Co. At another time he said he was buying his Sherwood Whiskey prior to the sales in question from Lee Sonnebom & Company, and later, when asked if he could tell from whom he got the whiskey sold to the plaintiff, he said he could not say. Flaceomio and his employees testified that he bought the Sherwood Whiskey that he sold in bottles in five and ten gallon demijohns. These demijohns when delivered to him had a card or tag attached to them bearing the name of the whiskey and the name of the person from whom he purchased them. The demijohns were placed in the room where he conducted his saloon, and the bottles were filled in that room from the demijohns as they were needed, and labeled, as to its contents, according to the tag on the demijohn.

He got some of the labels from Sonnebom, and the bottles were purchased by bfm from a number of persons, and were always washed before they were filled with whiskey. They further testified that they never put anything in the whiskey, that they never ³⁷³ liad any wood alcohol at his saloon, and that Maccomio and his employees sold the whiskey just as it was when he received it, and never knew or had any reason to suspect that any of the whiskey they sold contained wood alcohol. Maccomio also testified that he had been buying whiskey from Lee Sonnebom & Company for a number of years; that before he began to purchase from Lee Sonnebom he learned that he was a reliable merchant, and that he had never heard of any complaints about the whiskey that he, Maccomio, sold until the complaint in this case. The record shows that wood alcohol in taste, odor and intoxicating" effect “very closely” resembles the ordinary grain alcohol, and there is no evidence to show that its presence in whiskey can be detected except by a chemical analysis.

In respect to the defendant Sonnebom, the evidence shows that he was in the wholesale liquor business, and had been in that business .for eleven years. He bought his whiskey in barrel lots, and in the years 1911, 1912 and 1913 he purchased'Ms Sherwood Whiskey from A. J. & A. Freiburg, of Cincinnati, Ohio; II. H. Shufelt of Peoria, Illinois, and the Meichman Company of Cincinnati, Ohio. He had dealt with these parties ever1 since he had been in business, and they were merchants of the highest reputation.

The name of the whiskey was marked on the barrel, and when the barrels of whiskey ai’e received by him they are rolled in on the floor of his building and are kept there until they are needed.. When the whiskey is needed in his business a spigot is inserted in the barrel, and the barrel is placed on the rack, and when he gets an order for less than a barrel of whiskey, lie makes out a ticket, bearing the name of the purchaser, the name of the whiskey and the quantity desired, and places the ticket on the proper barrel, and then sees that the receptacles are properly filled from the barrel. The demijohns in which he sells the whiskey are “filled from the original barrels just as he got them” from the parties from whom he purchases;, and the demijohns are then tightly corked and ³⁷⁴ loaded on Ms- wagon for immediate delivery to Iris customers. When these demijohns are returned by his customers they are immediately put into a. tank “and soaked and rinsed thoroughly and then corked,” and when they are needed they are. again “rinsed” before they are filled.

Sonneborn and his employees further testified that he was not a “rectifier” oi“blender” of spirits, or a. manufacturer of liquors; that ho dealt in liquors as a. “jobber”; that he never had any wood alcohol on his premises, never sold any whiskey containing wood alcohol, and had never had any complaints of any kind about the whiskey he sold. As to the defendant Sonneborn, it would seem clear upon this state of the proof that there was- no evidence legally sufficient to entitle the plaintiff to recover on any of the counts in the declaration. If we assume that there was evidence to show that the whiskey that the plaintiff got from Flaccomio’s saloon contained wood alcohol, and that Flaccomio purchased the whiskey from Lee Sonneborn & Company, there is not the slightest evidence to show that Sonneborn or his agents knew, or by the exercise, of reasonable care could have known that it contained wood alcohol, or that he or his agents were guilty of negligence either in the purchase or sale of the whiskey. lie was not the distiller or manufacturer; or blender or rectifier of the whiskey he sold F'laecomio, but he simply sold in smaller quantities the whiskey he purchased, in large quantities. In the absence of some evidence. that Sonneborn or his agents knew of the presence of wood alcohol, or of some evidence of fraud, deceit or negligence on his or their part, there is no ground or principle' upon which he could be held liable under the pleadings in the case for the injury the plaintiff sustained.

The cases relied on by the appellee do not warrant a different conclusion, but in our judgment fully sustain this view. Tn the case of Thomas v. Winchester, 6 N. Y. 397 , the action was1 brought to recover damages “for negligently putting up., labeling and selling as and for the extract of dando ³⁷⁵ Hon, which is a simple and harmless medicine, a jar of tho extract of belladonna, which is a deadly poison; by means of which the plaintiff, * * * to whom * * * a dose of dandelion 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,” etc. The medicine was purchased by the plaintiff’s husband at the store of Dr. Foord, a physician and druggist in Madison 'County, where, the plaintiff lived. It was sold for and believed by I)r. Foord to be the extract of dandelion, and he purchased it as the extract of dandelion from J. S. Aspinwall, a druggist in Yew York, and Aspinwall bought it from the defendant as the extract of dandelion, believing it to be such.

The defendant was engaged at Yo. 108 John street, Yew 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 he purchased were put up in like manner. The jars containing extracts manufactured by himself and those containing extracts purchased 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 defendant at a salary, as an assistant in his business.

The extract-contained in the jar sold to Aspinwall, and by him to Boord, was not manufactured by the defendant, bul wíu purchased by him from another manufacturer or dealer. “The extract of dandelion and the extract of belladonna resemble, each other in color, consistence', smell and taste; hut may on careful examination be distinguished the one from the. other by those who are well acquainted with these articles.” Gilbert’s labels were paid for by Winchester, the defendant, and used in his business with his knowledge and assent. The defendant. moved for a nonsuit on several grounds. The first of these, grounds was, “That the action could not he sustained, as the defendant was the remote vendor of tho article in question; and there was no connection, transaction or privity he- ³⁷⁶ tween him and the plaintiff”; and the sixth ground was, “That there was no sufficient evidence of negligence- in the defendant to go to the jury.” The lower Court charged the jury that if Aspinwall, Eoord and Mr. Thomas were free from negligence, and if the defendant was guilty of negligence in putting up and vending the extract in question the plaintiff was entitled to recover, provided the extract administered to the plaintiff was the same put up- by the defendant and sold by him to Aspinwall and by Aspinwall to Eoord. In sustaining the instruction granted by the lower Court, the Court of Appeals of New York, speaking through Chtee Judge Ruggles, said: “The case depends on the first point taken by the defendant on his motion for a nonsuit; and the question is, whether the defendant, being a remote vendor of the medicine, and there being no privity or connection between him and the plaintiff, the action can be maintained. “If, in labeling a poisonous drug with the name of a harmless medicine, for public 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 can not 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 consequence of the gross negligence of A. in building the wagon is overturned and injured, D. can not recover damages against A., the builder. A.’s obligation to build the wagon faithfully, arises solely out of his contract with B. 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 builder’s negligence; and such negligence is not an act imminently dangerous to human life * * *. “But the case in hand stands on a different ground. The defendant was a dealer in poisonous drugs.

Gilbert was his agent in preparing them for- market. The death or great bodily harm of some person was the natural and almost inevitable consequence- of the sale of belladonna by means of the false label. Gilbert, the defendant’s agent, would have ³⁷⁷ been punishable for manslaughter if Mrs. Thomas had died in consequence of talcing the falsely labeled medicine. Every man who, by his culpable negligence, causes the death of another, although without intent- to kill, is guilty of manslaughter. * * * A chemist who negligently sells laudanum in a vial labeled as paregoric, and thereby causes the death of a person to whom it is administered, is guilty of manslaughter. -* * -x- jn j-eppeq f0 the wrongful and criminal character of the negligence complained of, this case differs widely from those put by the defendant’s counsel.

No such imminent danger existed in those cases. * * The defendant’s negligence put human iife in imminent danger. * * * In Longmeid v. Holliday (6 English Law and Eq. Rep. 562), the distinction is recognized between an act of negligence imminently dangerous 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 paify injured, whether there he a contract between them or not; in the latter, the negligent paify is liable only to the party with whom he contracted, and on the ground that negligence is a breach of the contract.” We have quoted from Thomas vs. Winchester at some length because it is referred to by the appellee, and in many of the later cases, as the leading case on the subject, and because it shows conclusively that the plaintiff’s right to' recover was based on tho averment and proof of the defendant’s negligence in labeling and selling a deadly poison. In the case of Hoover et al. v. Peters, 18 Mich. 51 , where the purchaser, who purchased for consumption, was allowed to recoup for meat that was unsound on