Allan v. State S.S. Co.

• Citation: 30 N.E. 482,132 N.Y. 91
• Parties: ALLAN v. STATE S. S. Co., Limited.
• Decision Date: 08 March 1892
• Court: New York Court of Appeals

132 N.Y. 91

30 N.E. 482

ALLAN

v.STATE S. S. Co., Limited.

Court of Appeals of New York,

Second Division.

March 8, 1892.

Appeal from supreme court, general term, second department.

Action by Alice M. Allan, against the State Steam-Ship Company, Limited, for injuries alleged to have been sustained by plaintiff upon a voyage from Glasgow to New York on the steamer State of Georgia, being the result of taking a does of calomel which was furnished to her by the physician on board said steamer in response to a request for five grains of quinine. Judgment for plaintiff was affirmed by the general term. Defendant appeals. Reversed.

William D. Guthrie, for appellant.

M. L. Towns, for respondent.

BROWN, J.

The learned counsel for the respondent contends that when the plaintiff applied for quinine she had a right to rely upon receiving that medicine, and, if she was given anything else, the defendant was liable for the injuries sustained, and that mistake upon the part of the physician having charge of the ship's medicines was not a defense. Van Wyck v. Allen, 69 N. Y. 62, and Thomas v. Winchester, 6 N. Y. 397, are the authorities cited in support of that proposition. The first case was an action upon contract for breach of an implied warranty. The main question there decided related to the rule of damages. The case has no application to an action for a wrong which has its foundation in the violation of a duty entirely outside of and beyond the stipulations of the contract. Thomas v. Winchester was decided upon the negligence of the defendant. The trial court charged the jury that, ‘if the defendant was guilty of negligence in putting up and vending the extracts in question, the plaintiff was entitled to recover;’ and this court held that the liability of the defendant did not arise out of any contract or direct privity between him and the plaintiff, but out of the duty imposed upon him to avoid acts in their nature dangerous to the lives of others; and in carelessly labeling a deadly poison as a harmless medicine, and sending it so labeled into the market, the court found the negligence upon which a recovery was sustained. But whether the druggist who made the immediate sale of the poison to the plaintiff would have been liable to her, or whether he was justified in selling the article upon the faith of the defendant's label, was not in that case decided. That precise question was decided, however, in Brown v. Marshall, 47 Mich, 576, 11 N. W. Rep. 392, and in Beckwith v. Oatman, 43 Hun, 265. In both of these cases a recovery was permitted by the trial courts upon proof of the fact of a sale of poison to a person who called for a harmless drug, and the question of negligence was withdrawn from the consideration of the jury over the defendant's objection and exception. In both cases the exception was sustained, the appellate courts holding that a failure on the part of the druggist or his clerk to exercise due care and skill must be proved. We quote with approval from the opinion of Judge COOLEY in the Michigan case: ‘The question is whether the delivery at a drug-store of a deleterious drug to one who calls for one that is harmless, and a damage resulting therefrom, of themselves give a right of action, even though there may have been no intentional wrong, and the jury may believe there is no negligence. That such an error might occur without fault on the part of the druggist or his clerk is readily supposable. He might have bought his drugs from a reputable dealer, in whose warehouse they have been tampered with for the purpose of mischief. It is easy to suggest accidents after they come to his own possession, or wrongs by others, of which he would be ignorant, and against which a high degree of care would not give perfect protection. But how misfortune occurs is unimportant if, under all circumstances, the fact of occurrence is attributable to him as a legal fault. The case is one in which a high degree of care may justly be required. * * * It is proper and reasonable that the care required shall be proportionate to the danger involved. But we do not find that the authorities have gone so far as to dispense with actual negligence as a necessary element in the liability when a mistake has occurred.’ No case is cited which conflicts with the rule thus stated, and I think no authority to the contrary exists in this state. The rule of liability applicable to a druggist in cases of this character is the same as that which governs the liability of professional persons whose work requires special knowledge or skill, and a person is not legally responsible for any unintentional consequential injury resulting from a lawful act when the failure to exercise due and proper care cannot be imputed to him, and the burden of proving such lack of care, when the act is lawful, is upon the plaintiff. Brown v. Marshall, supra; Thomas v. Winchester, supra; Beckwith v. Oatman, supra; Losee v. Buchanan, 51 N. Y. 476-488;Carpenter v. Blake, 75 N. Y. 12; Morris v. Platt, 32 Conn. 75; Simonds v. Henry, 39 Me. 155; Fleet v. Hollenkemp, 13 B. Mon. 219.

Negligence of the defendant, therefore, being the foundation of the plaintiff's cause of action, we proceed to the consideration of the facts of the case. The defendant was a common carrier of passengers, and we need not discuss whether the common law imposed upon it any duty to treat those who were sick, nor whether it made it responsible for their proper care or management. The duty that it assumed in this respect in this case was imposed upon it by the statute of Great Britain, under the laws of which it was incorporated. That statute, known and cited as the ‘Passengers' Act 1855,’ and entitled ‘An act to amend the law relating to the carriage of passengers by sea.’ passed August 14, 1855, enacts: First. (Section 41.) That ‘every passenger ship shall * * * carry a duly-qualified medical practitioner, who shall be rated on the ship's articles.’ Second. (Section 43.) ‘The owner or charterer of every passenger ship shall provide for the use of the passengers a supply of medicine * * * proper and necessary for diseases * * * incident to sea voyages, and for the medical treatment of the passengers during the voyage; and such medicines * * * shall, in the judgment of the emigration officer at the port of clearance, be good in quality and sufficient in quantity for the probable exigencies of the intended voyage, and shall be properly packed, and placed under the charge of the medical practitioner, * * * to be used at his discretion.’ Third. (Section 44.) ‘No passenger ship * * * shall clear out or proceed to sea until some medical practitioner, to be appointed by the emigration officer at the port of clearance, shall have inspected such medicines * * * as are required to be supplied by the last section. * * * and shall have certified to the said emigration officer that the said ship contains...