Darks v. Scudder-Gale Grocer Company
| Decision Date | 06 June 1910 |
| Citation | 130 S.W. 430,146 Mo.App. 246 |
| Parties | MARTHA J. DARKS et al., Respondents, v. SCUDDER-GALE GROCER COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Virgil Rule, Judge.
Judgment affirmed.
Jones Jones, Hocker & Davis for appellant.
(1) There was a fatal variance between the allegations and the proof in that the petition alleged the case in tort, whereas the proof showed nothing more than a breach of warranty (express or implied). Glenn v. Hill, 210 Mo. 299. (2) The court erred in giving the first instruction for plaintiffs. Brown v. Marshall, 47 Mich. 576; Akers v. Overbeck, 18 Miss. 198; Howes v Rose, 13 Ind.App. 674; Hackett v. Pratt, 52 Ill.App. 346; Thompson on Negligence, sec. 827; Clement v. Crosby & Co., 111 N.W. 745; Gould v. Woolen Co., 147 Mass. 315. (3) The court erred in permitting plaintiff to prove that Darks took a pride in his home and was affectionate, kind and indulgent to his family. Williams v. Edwards, 94 Mo. 447; Bank v Payne, 111 Mo. 291; Walterman v. Schurick, 102 Mo.App. 133; Edwards v. Warner, 84 Mo.App. 200; Jackson v. Smith, 118 S.W. 659.
Johnson, Houts, Marlatt & Hawes and W. W. Wood for respondent.
(1) The defendant having sold the ginger as its own "Buffalo Brand" of pure ginger and under its guaranty, and its salesman having represented that it was manufactured by defendant, its liability is exactly the same as if it had itself manufactured the ginger. Heiser v. Kingsland Mfg. Co., 110 Mo. 605; Thomas v. Winchester, 6 N.Y. 397; Packing & Provision Co. v. Tilton, 87 Ill. 555. (2) The instructions correctly submitted the negligence of defendant to the jury. Young v. Oil Co., 185 Mo. 662; Bishop "Non-Contract Law," 413; Minner v. Scherpich, 5 N.Y.S. 85; Brunswig et al. v. White, 70 Tex. 507; Knoefel v. Atkins, 40 Ind.App. 438. (3) The measure of damages laid down by the instruction on the measure of damages was correct. The tort was committed where the injury was suffered; that is, in the Indian Territory. 2 Wharton "Conflict of Laws," 1129; Rundell v. La Companie Generale, 100 F. 655; Cameron v. Vandergriff, 53 Ark. 381; Railroad v. Carroll, 97 Ala. 134. (4) The amount of the recovery is fixed by the lex loci delicti. Railroad v. Babcock, 154 U.S. 190; 2 Wharton "Conflict of Laws," 1110; Railroad v. Brown, 67 Ark. 301; Hanna v. Railroad, 41 Ill.App. 130. (5) Mr. Williams was a competent witness as to representations made by Rizer, defendant's agent. R. S. 1899, sec. 4652; Thompson v. Brown, 121 Mo.App. 528; Howard v. Hardy, 128 Mo.App. 353. (6) The evidence admitted as to the interest and pride which Mr. Darks took in his family was proper, as it had a direct bearing on the probably pecuniary loss sustained. Railroad v. Sweet, 60 Ark. 559; Gamache v. Tin Foil & Metal Co., 116 Mo.App. 602.
The plaintiffs are the widow and minor children of Roscoe C. Darks, deceased, who lived and died at Wetumka, Oklahoma, where, during his lifetime, he conducted a general merchandise and grocer business in partnership with one Williams, under the firm name of Williams and Darks. The defendant is engaged in the wholesale grocer business at St. Louis. E. W. Rizer, at the times hereinafter mentioned, was doing business at Muskogee, Oklahoma, as a merchandise broker, and under the name of E. W. Rizer & Co. Mr. Rizer, as such broker, had from time to time sold goods for the defendant as an ordinary broker on commission. The defendant paid him no salary, and limited him to no territory, but he sold goods for the defendant and for other merchants. On August 19, 1904, Rizer obtained from Williams and Darks an order for merchandise amounting to $ 16.13. In this order was included one dozen four-ounce bottles of ginger extract. The order directed the shipment to be made via the Frisco Railroad from St. Louis. In due time the order was mailed and the defendant accepted and the goods delivered to the railroad company and shipped to Wetumka, and received by Williams and Darks. On the 25th day of October, following, Mr. Darks died, as the testimony shows, from the result of wood alcohol poisoning.
This action was brought in the circuit court of the city of St. Louis, by the widow and children, for the death of Mr. Darks, and judgment was rendered against the defendant in the sum of five thousand dollars, from which this appeal is prosecuted.
The petition charges that the defendant represented to Williams and Darks that the extract sold was of its own manufacture; that extract of ginger is generally used for medicinal purposes, and is wholly harmless when properly prepared and used for said purposes, and that the same was purchased by Williams and Darks for use and sale in their trade at Wetumka, Oklahoma; that Mr. Darks, being slightly indisposed and feeling the need of medicine, mixed the ginger bought from the defendant with water and drank the same in moderate quantities, and as a result thereof, died.
The petition further charges that the ginger sold by the defendant was prepared of wood alcohol, and was a deadly poison, and that the same was prepared and manufactured by the defendant, and that the death of Darks was due to the wrongful and careless act of the defendant in selling to said Darks said poisonous liquid. After setting out Lord Campbell's Act as it appears by the Statute in force in the Indian Territory, as the same was declared to be in force in that territory by the act of Congress, May 2nd, 1890, the petition concludes, by charging that the death of said Darks was caused by the wrongful, wanton, and careless act of the defendant, and that plaintiffs have been damaged thereby in the sum of $ 20,000.
The answer consisted of a general denial and also of a plea of contributory negligence, in that it was charged that Mr. Darks came to his death by reason of carelessly and negligently taking and drinking large quantities of the extract mentioned in plaintiff's petition.
There is not much dispute about the facts. Although the petition charges that the extract of ginger was in fact prepared and manufactured by the defendant, the testimony shows it was not made by the defendant, but by one Shelley, doing business as the Shelley Manufacturing Company. Mr. Shelley was a chemist and had been for years engaged in the manufacture of flavoring extracts, and the defendant bought this extract from him in the regular course of trade. If the result turned on the question whether the defendant was guilty of negligence in selecting Mr. Shelley as a proper person to trust in the preparation of such articles, the plaintiff's case was not proven. The evidence shows for many years Mr. Shelley had been engaged in the business of preparing such extracts, and he was considered competent in every particular.
When the defendant received an order for extracts, if it did not have the same on hand, they were ordered, generally, from Mr. Shelley. The extracts were put in bottles containing about 2 1-2 to 2 3-4 ounces of liquid, about ten per cent of which was oleo-resin of ginger, and about eighty-five per cent Columbian spirits, or wood alcohol. The bottles were packed in boxes after being labeled, with a label furnished by the defendant, and delivered to the defendant enclosed in the boxes, so that the defendant made no examination of the bottles. There was no proof that the defendant, or any of its officers had any knowledge of the ingredients used in compounding the extract. On the contrary, it was affirmatively shown that they had no such knowledge, but bought the extract from a reputable, or presumptively reputable, compounder, and disposed of the extracts in the original packages in the regular course of trade.
Mr. Shelley was offered as a witness by the defendant, and testified that he was a graduate in pharmacy; that he had worked in wholesale drug stores, and that he was a manufacturing chemist, and had been for many years; that for eight years previous to the sale of the extracts in question, he had prepared for the defendant and other wholesale dealers in St. Louis, lemon, vanilla, pineapple, ginger, and many other extracts; that in preparing his extracts he used the Columbian Spirits purchased from Meyer Brothers drug store in St. Louis, and that he had been using the Columbian Spirits for two years; that the extract is a flavoring extract and was not manufactured as a medicine; that it was not intended as a medicine or a beverage, if it had been, he would have labeled it such and prescribed the amount to be taken as a dose, and that so long as it was used for the purposes for which it was manufactured, it was harmless, and if Mr. Darks took enough to kill him, and was using it for a beverage, he was using it for a purpose for which it was not intended.
The invoice of the goods shipped and sent to Williams and Darks contained the following: "All goods bearing our Buffalo Brand are guaranteed." On the bottles containing the ginger extract, was a label as follows: " And in addition thereto, the head of a buffalo was printed on each bottle.
The evidence shows that at the time Williams and Darks carried a general line of merchandise, including a few medicines and sundry drugs; that when Mr. Rizer called to sell them the goods, and at the time they ordered the same from him, he showed them a sample bottle of the extract and stated that it was used as a medicine, and that it was of defendant's own manufacture.
The testimony of the plaintiff tends to prove that Mr. Darks was not feeling well, and that he concluded to take some of the extract of ginger ordered from the defendant, and poured it into a bottle containing water, and drank therefrom two or three...
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