Coy v. Cutting

• Decision Date: 08 July 1933
• Docket Number: 31249.
• Citation: 138 Kan. 109,23 P.2d 458
• Parties: COY v. CUTTING.
• Court: Kansas Supreme Court

23 P.2d 458

138 Kan. 109

COY v. CUTTING.

No. 31249.

Supreme Court of Kansas

July 8, 1933

Syllabus by the Court.

In passing on defendant's demurrer to evidence, court must consider plaintiff's evidence as true, and give her benefit of most favorable inferences reasonably to be drawn therefrom.

In wife's action for loss of means of support in consequence of husband's intoxication produced by Jamaica ginger sold him by defendant, as result of which husband became afflicted with paralysis, evidence held sufficient to take case to jury (Rev. St. 1923, 21-- 2150).

1. In passing on a demurrer to evidence, the trial court has no authority to weigh the testimony, but must give to the party who offered it all the inferences most favorable to him which reasonably can be deduced therefrom.

2. In an action under our civil damage statute (R. S. 21--2150) the record is reviewed, and it is held, that the evidence presented on behalf of plaintiff should have been submitted to a jury.

Appeal from District Court, Norton County; E. E. Kite, Judge.

Action by Evangeline Coy against George Cutting. From an adverse judgment, plaintiff appeals.

Judgment reversed, with directions.

HARVEY DAWSON, and THIELE, JJ., dissenting in part.

T. D Relihan and A. W. Relihan, both of Smith Center, for appellant.

R. W Hemphill and W. E. Mahin, both of Norton, for appellee.

HARVEY Justice.

This is an action under our civil damage statute (R. S. 21--2150) in which plaintiff seeks to recover for the loss of her means of support in consequence of the intoxication of her husband produced by Jamaica ginger sold him by defendant. The trial court sustained a demurrer to her evidence, and she has appealed.

Briefly stated, the petition alleged that plaintiff is the wife of J. P. Coy, upon whom she was dependent for her means of support and from whose labors and personal earnings she received her support; that early in March, 1930, he was earning about $300 per month; that he owned and operated a barber shop in the city of Norton and had a large and profitable business, and in connection therewith sold barber supplies; that defendant owned and operated a drug store in the city of Norton, and among other things sold an intoxicating liquor commonly known as "Jamaica ginger" for beverage purposes, which plaintiff's husband drank and thereby became intoxicated from the use thereof, and as a result of drinking the same and of the intoxication aforesaid became afflicted with paralysis, a disease commonly called "Jake paralysis"; and that as a direct and proximate result thereof, and in consequence of the sale of said intoxicating liquor by the defendant to J. P. Coy, husband of plaintiff, and of his affliction caused by drinking the same, and by his becoming intoxicated therewith, he became wholly incapacitated from performing labor, and became and is an invalid, and as a result thereof plaintiff has been and is deprived of her means of support, to her damages in a sum named. The answer admitted that plaintiff is the wife of J. P. Coy, that he was engaged in the barber business at Norton, and that defendant owned and operated a drug store in Norton, and alleged that about March 4, 1930, defendant had in his store for sale, for medical purposes, a patent medicine known as Jamaica ginger, used in the treatment of stomach and intestinal disorders, and that any sales made by defendant were for medicinal purposes only; that such Jamaica ginger had been purchased by defendant, bottled, labeled, and stamped, "U. S. P."; that patent medicines are so stamped when they have passed the pure food and drug requirements of the United States, and that defendant relied upon the purity of such medicine by reason thereof; that the use of pure Jamaica ginger could not cause paralysis, an claimed in plaintiff's petition, and if J. P. Coy purchased any Jamaica ginger of defendant and drank the same and became paralyzed such condition was not the result of intoxication or the use of pure Jamaica ginger, but was due to the presence of some foreign ingredient of a poisonous character in the Jamaica ginger, the kind, nature, and presence of which was then and is now unknown to defendant; and it was specifically denied that the injury complained of in plaintiff's petition, commonly called "Jake paralysis," was either proximately or remotely the result of intoxication.

The evidence may he summarized as follows: Plaintiff testified that she is the wife of J. P. Coy, to whom she was married in 1912; that he is a barber, and has been engaged in that business in Norton for fifteen years, and since 1929 has had a shop of his own; that prior to March 4, 1930, he was addicted to the habit of drinking intoxicating liquors, but "not a great drinker"; he lost no time from his work by reason of drinking, so far as she knew. After that date she observed that he became physically impaired, unable to walk, his feet dragged, and his hands were paralyzed. After she first noticed this it became worse--he got helpless, would fall to the floor, and there came a time when he could not walk and was required to go to bed. Plaintiff took care of him, took him to Waconda Springs for a time, and had doctors visit, examine, and treat him, without substantial change from these various efforts; that from about March 4, 1930, until March 28, 1932, he was unable to work and contributed nothing to her support. Previously he had supported plaintiff entirely. During this time she not only had to care for him, but support herself. At the time of the trial there had been some improvement in his condition--he could walk some, drive a car, and she received some income from the shop, which was being operated by others. She saw several bottles of Jamaica ginger which her husband had brought home and drank the contents.

J. P. Coy testified on behalf of plaintiff that he had lived in Norton since 1915, was a barber, the husband of plaintiff, that he owned and operated a shop and sold barber supplies, and in March, 1930, had a prosperous business; that he had been a drinking man for a good many years, a pretty steady drinker; that he had often been intoxicated; that he had used all kinds of intoxicating liquors, including vanilla extract, and previous to 1930 had bought Jamaica ginger from others than defendant. Defendant had purchased the drug store in Norton in 1929. Early in January, 1930, he first bought Jamaica ginger from the defendant, and between that time and March 4, 1930, had bought about twenty-five bottles of it.

"The first bottle I got there I took home with me and drank it just before I ate supper and I could feel the effects of it. I had been intoxicated and know what the effect of intoxicating liquor is. You take a drink and after it gets through burning you have a right smart kick. That is what I drank it for, to get the kick. After I bought the first bottle in January, I went back for more. Sometimes four or five times a day. I would take spells, not take a drink for a week and then I would start again. In each instance that I bought that I had the same feeling and effect from it."

At times defendant was out and said he would let the witness know when he got more in. At one time defendant came to the top of the steps and called to the witness and said: "The old man is in town." The witness understood by that the shipment of "Jake" had arrived. Sometimes he drank it in the drug store, and sometimes he took it away with him, or drank a part of it and took the rest away.

"The first few bottles I drank the only effect I had was alcohol--like drinking alcohol. The first bottle I drank I felt just like I took a drink of alcohol or whisky, only it burned. Make you feel kinda dizzy--feel pretty good, like you owned half of the world, something like that. I had been intoxicated and this gave you that drunk effect. That was true each instance when I purchased this Jamaica ginger. It did not all taste alike.

"Q. What was the difference in it? A. The last bottle I drank in there tasted like licorice and I don't know--it had an awful taste. I said, 'George, something is wrong with that,' and he said, 'No, it is all right, it has got plenty of kick."'

That was the last bottle he bought. He drank a part of it and poured the rest out, because it did not taste right. He went home.

"It made me sick and I have been sick with Jake-leg ever since. I never did get over it. As soon as the alcohol effect left I got sick at my stomach and continued to remain sick. I was sick for about three weeks or a month that same feeling that I couldn't eat anything. *** After I had taken this bottle I noticed the next morning it hit my stomach. It would just quiver and shake. That quit and it went to my legs."

Later it went to his hands and he was totally incapacitated for some time and was forced to quit the shop, and had trouble running the business. He had other barbers employed and received 40 percent. of their income, but out of this he had to furnish supplies and pay rent.

"I finally lost my trade. I cannot stand up and work now. I have a stool that I sit on and shave a little and cut hair some."

The last bottle, that tasted bad, was the one which gave him the paralysis. He drank it after quitting time, about 7 o'clock in the evening. The same afternoon he had bought a bottle of Jamaica ginger from defendant, about 4 o'clock, and drank it about 5:30.

"But it didn't seem to affect me, it only gave me a little power and that died down and I thought I would get another bottle. I have been intoxicated many times. I never had paralysis from any of that intoxication. It never paralyzed me. My stomach would always work all right. I was acquainted with the fellows in town that drank almost daily. They never got any...