Meyer v. King

Whitfield, J., delivered the opinion of the court. This is an action instituted under § 663, code 1892, by appellant to recover damages for the loss of the services of his minor son, resulting from his death by reason of the negligence, as alleged, of appellee, a druggist in the city of Vicksburg, in selling to said minor, in wilful violation of § 1252, code 1892, chloroform, which, after such sale, he drank and died. There were two declarations. The first contained two counts. In the first count it is alleged that the minor was ‘' a minor of tender years, who was at this said time (the time of sale) employed as a clerk in a grocery store, and was earning for such services a reasonable and substantial compensation, ’ ’ and that on ' ‘ February 20, 1894, he applied to appellee to purchase two ounces of chloroform, the same being a dangerous and deadly poison, and of that class of drugs which, by statute, druggists are prohibited from selling to minors, ’ ’ and that the appellee, in wilful, — 5 — negligent and open violation of the statute, sold said poison to said minor, and said minor did soon thereafter take said poison internally, and by reason thereof in a few hours died. ’ ’ The second count describes the minor simply as “a minor,” omitting the phrase ‘' of tender years, ’ ’ and adds that the sale was made to him ‘ ‘ while he was intoxicated, from an excessive use of liquor, to such an extent that he was wholly incapable of exercising any reasonable degree of caution or prudence, and to a degree that was evident from his general appearance. ’ ’ Appellee interposed a demurrer, upon the grounds, first, that it did not appear that the sale was the proximate cause of the injury; second, that the minor' was himself guilty of the act which caused the injury, and that it did not appear that the minor was not of years of discretion; third, that the minor would have had no right of action, and, hence, the appellant had none; and, sixth, that the declaration did not show that the defendant knew, or had reason to believe, that the chloroform would be taken or used by the said minor to his injury or detriment, etc. The demurrer was sustained. Appellant then filed an amended declaration, setting out the same facts as in the second count of the original declaration, adding that the appellee ‘ ‘ kept in stock various poisons, which, from their very nature, it was incumbent on her to handle with great caution, and to sell such drugs to only such persons as she knew to be cautious and prudent, or to whom, from their general appearance, she would reasonably suppose were prudent and cautious, and capable' of using said drugs as prudent, cautious, and intelligent people commonly do.” The same demurrer was interposed to this declaration and sustained, and the suit dismissed, and this action of the court is the error assigned. Counsel for appellant insists that the first count of the first declaration presents the minor as one not of years of discretion, and, hence, not chargeable with contributory negligence.' The phrase ‘£ minor of tender years, ’ ’ occurring in pleadings in — 6 — various connections — as, in answers of guardians ad litem appointed for minors in probate proceedings — may embrace as well minors of twenty years as twenty months. Counsel cites Whittaker’s Smith on Negligence as saying: "The doctrine of contributory negligence does not apply to infants of tender age.” But the remark cited by counsel is quoted, and the author then says: " This rule is scarcely satisfactory, because it is difficult to say what is or is not a tender age; but a better rule, which would probably excuse the negligence of a child of tender age, is that a child is only bound to exercise such a degree of care as children of his particular age may be presumed capable of exercising.” Whittaker’s Smith on Neg., p. 411. It was easy for appellant to have stated the particular age. In Westbrook v. Railroad Co., 66 Miss., 566; Vicksburg v. McLain, 67 Miss., p. 4; and Mackey v. Vicksburg, 64 Miss., 780 — cases invoked by counsel — the age is set out in the declaration, in the first and last at six years, in the second at eight. Whether, however, the phrase ' ‘ minor of tender years, ’ ’ standing alone in a declaration in an action ex delicto, should be held, in the face of the rule that pleadings must be taken most strongly against the pleader, as importing legally a minor not of years of discretion, we are not called on to decide, for the declaration adds, as indicating age, that he was " employed as clerk in a grocery store, and earning a reasonable and substan-tia] ' compensation, ’ ’ which was received by appellant, and used to support said minor’s mother.” Under these allegations, this count presents a minor of years of discretion, capable of contributor}'- negligence. So treating him, does the first count pres'ent a cause of action ? It will be observed the count does not allege that the minor was inexperienced in the use of chloroform, that there was anything in the character or disposition of the minor that rendered it dangerous to put the chloroform in his hands, or'that he was ignorant of its use. In Poland v. Earhart, 70 Iowa, 285, the defendant had sold — 7 — a minor, in contravention of statute, a pistol. The minor accidentally shot himself. The court says: “The immediate cause of these injuries was not the sale of the weapon . but the accident which subsequently occurred. If plaintiff, then, ’ ’ the mother, ‘ ‘ has a cause of action, it- must be founded on the fact that the 'accident . . . might reasonably have been anticipated by the defendant as a consequence of the sale of the weapon to him. But there are no allegations, in the petition showing that such injury ought to have been anticipated as a consequence of the act. . . . It is not alleged that he was ignorant of the character of the weapon sold him, or. that he was inexperienced in the use of such weapons; neither is it shown that there was anything in his character or disposition that rendered it dangerous to place a weapon of that kind in his hands. It cannot be said that defendant might reasonably have anticipated that an accident would occur from the handling of the weapon, from the fact alone that the person to whom he sold it was a minor. ’ ’ The necessity of similar allegations is shown in Carter v. Towne, 98 Mass., 567 (where, in the case of a boy eight years old, the declaration alleged that the boy had no experience in the use of gunpowder, and was an unfit person to be intrusted with it, all of which the defendant well knew, and that the boy, in ignorance of its effects, and using the care of which he was capable, exploded it, and was injured), and in Thompson on Negligence, vol. 1, p. 232, and 1 Sutherland on Damages, § 19. In King v. Henkie, 80 Ala., 510, where whisky was sold to one alleged to be so drunk as to be “ destitute of reason and sense, ’' in violation of statute, and he drank it and died, the court says: “Had it not been for the drinking of the liquor after the sale, which was a secondary or intervening cause operating to produce the fatal result, the sale itself would have proved entirely harmless. Hence, it cannot be said that the wrongful act of the defendants in making the sale of the liquor caused the death of King, but rather his own act in drinking it. ’ ’ — 8 — In 105 U. S., 249, where one injured on a railway train became subsequently insane, and eight months later took his life, the court says: “The argumeirt is not sound which seeks to trace this immediate cause of the death, through the various stages of mental aberration, physical suffering, and eight months’ disease and medical treatment, to the original accident on the railroad. Such a course of possible, or even logical, argument would lead back to that £ great first cause least understood, ’ in which the train of all causation ends. ’ ’ Mr. Sutherland says, vol. 1 of his work on damages, §34: "If one’s fault concur with something extraordinary, and therefore not likely to be foreseen, he will not be answerable for such unexpected result. ’ ’ We think it clear that the death cannot here be concatenated with the sale, as cause with effect, but is due to the new will of the minor intervening, and operating as an independent cause to produce it, and the first count, therefore, presents no cause of action. The second count presents the minor as one of years of discretion, and intoxicated from an excessive use of liquor to such an extent that he was wholly incapable of exercising any reasonable degree of caution or prudence, and to a degree that was evident from his general appearance, omitting the phrase " of tender years, ’ ’ and also omitting the allegations noted as absent from the first count. The court says, in 80 Ala., pp. 510, 511, the case of an intoxicated adult: "If we admit that the state of mind thus produced was analogous to that of one non compos, so that the deceased was . . .so unconscious as to be, at the moment, incapable of knowledge or consent, yet the fact confronts us that this condition was the result of his own negligence, and,. without it, the death would not, probably, have occurred. The deceased, by the exercise of ordinary care, might have escaped making himself helplessly drunk. By not doing so, he was the author of his own death, ’ ’ etc. — 9 — It seems to be clear that voluntary intoxication on the part of an adult is such contributory negligence as bars a recovery. Patterson’s Railway Accident Law, p. 74. And we think that a minor old enough to earn, as clerk in a grocery store, a reasonable and substantial compensation, and old enough to be about town drunk' — and that is the case made by the second count on this point — is old enough to be chargeable with contributory negligence, arising from voluntary intoxication. It is true contributory negligence is a defense, and the declaration need not aver its absence. Hickman v. Railroad Co., 66 Miss., 154. But when, .as here, the declaration, on its face, avers facts showing the contributory negligence, the defense by demurrer is then as perfect as the defense on the facts showing in evidence the contributory negligence would be later. It follows that the minor, if he had survived, could not have maintained an action. This action by the father is purely statutory. The statute provides that ‘ ‘ whenever the death of any person shall be caused by any such wrongful or negligent act or omission as would, if death had not ensued, have entitled the party injured . . . to maintain an action ... in respect thereof, and such deceased person shall have left ... a father, the person . . . that would have been liable if death had not ensued . . . shall be liable . . . notwithstanding the death. ” , ‘ ‘ The condition that the action must be one which could have been maintained by the deceased, had it failed to produce death, or had not death ensued, has no reference to the nature of the loss or injury sustained, or the person entitled to recover, but to the circumstances attending the injury, and the nature of the wrongful act or omission which is made the basis of the action. ’ ’ 80 Ala., 509. "It defines the kind and degrees of delinquency with which the defendant must be chargeable in order to subject him to the action.” Whitford v. Panama R. R. Co., 23 N. Y., 465. — 10 — The liability of the appellee depends on the nature and quality of her act in making the sale, as characterized by the circumstances of the sale, as between her and the minor. This act takes its legal quality and color not only from what she did in making the sale, but from the presence or absence on the minor’s part of such contributory negligence in his conduct at the time as would bar him had he lived and sued. The presence of such contributory negligence, if it existed, is an essential part of the legal quality of the act, as imposing liability as between the minor and the appellee, and it is only where he, had he survived, could have sued, that the father, if he dies, can sue. The action is statutory, and must fall within the statute. The action is not, as in Cook’s case, 63 Miss., 38, to" recover for loss of service intermediate the injury and the death, but for loss of service caused by the death, for which no action lay at common law. Cooley on Torts, 2d ed., p. 307. It follows that, as the second count presents no cause of action maintainable by the minor had he survived, none vested in the father. The amended declaration sets out — so far as liability is concerned — substantially the same facts as the second count of the original declaration, adding the allegations indicated above as to the duty of appellee to exercise great care in handling such articles, etc. Counsel invoked the decisions made in railway cases, to the effect that, where one discovers another in a position or condition of peril, and wholly incompetent to care for his safety, and such utter incompetency is known to the first party, such party must graduate his care, in the particular instance, by all these facts of peril, of position or condition, and known utter incompetency, to escape liability. This is sound law. But the allegations in this amended declaration, on the most liberal construction, fall far short of presenting the case of one absolutely without mind, whose utter want of mind was known to appellee. The allegations in the Alabama case were that the defendant — 11 — knew deceased was a man of known intemperate babits; that he went into the ‘ ‘ saloon in a helpless state of intoxication, destitute of sense and reason, this sense and reason being oyer-thrown by the use of intoxicating liquors, and his mental faculties thereby so impaired that he did not know what he was doing, and incapable of knowing what he did, and incapable of consenting to anything; and that, in this condition of helplessness and mental darkness, the defendants, then and there knowing his mental condition, his want of mental power-to consent to anything, or to know what he was doing, ’ ’ sold, etc.; and yet the court said that his act in drinking was the proximate cause of the death, and that this ' ‘ mus,t be true, whatever the condition of his mind or state of his intellect. ’ ’ We do not desire to be understood as Sanctioning this utterance in all its breadth. We confine ourselves to the case made in this record, whether one who sells the articles inhibited in § 1252, with knowledge of his mental condition, to one absolutely without mind, is absolutely liable -for all that follows; “whether,” to use the language of the Supreme Court of Massachusetts, 98 Mass., p. 569, “he who, with knowledge of the party’s mental condition, delivers a cup of poison to an idiot, or puts a razor into the hands of an infant in its cradle, ’ ’ is so absolutely liable, on the principle that, in such case, it cannot logically be said that any one act on the part of such person could be reasonably anticipated by the defendant rather than any other act; that, in the case of one without mind absolutely, all acts, rational or irrational, are predicable with equal reasonableness, and hence the defendant in such case is absolutely liable for all that follows — we do not now decide. It is enough that the amended declaration does not describe, in this minor, one absolutely without mind. We do not think the amended declaration states a cause of action. Responding- to request of learned counsel for appellant, we say, he who violates § 1252, code of 1892, is punishable for such crime, by fine and imprisonment, under § 1454, and is civilly — 12 — guilty of negligence per se, but whether such negligent act makes him liable for the special damage sustained, depends upon whether it is the proximate cause of the injury. Binfor v. Johnston, 82 Ind., 426; Crawley v. Railroad Co., 70 Miss., 340. See generally for the most accurate discussion of the whole subject that has fallen under our eye, the exhaustive note of 36 Am. St. R., pp. 807—861. We approve the criticism of Harrison v. Berkely, 1 Strob., 525, on p. 830, but disapprove the criticism of Poland v. Earhart, 70 Iowa, 285, found on p. 817. The criticism overlooks, among other things, the fact that the minor was fifteen years of age, and hence, presumably, of years of discretion. Reprehensible as the conduct of the appellee was, tested by these rules, the sale was the causa sine qua non, the drinking the chloroform the causa causans, and the judgment is Affirmed.