Darks v. Scudders-Gale Grocer Co.

• Decision Date: 06 June 1910
• Citation: 146 Mo. App. 246,130 S.W. 430
• Parties: DARKS et al. v. SCUDDERS-GALE GROCER CO.
• Court: Missouri Court of Appeals

130 S.W. 430

146 Mo. App. 246

DARKS et al. v. SCUDDERS-GALE GROCER CO.

Springfield Court of Appeals. Missouri.

June 6, 1910.

Rehearing Denied July 9, 1910.

1. WITNESSES (§ 140)—COMPETENCY—TRANSACTIONS WITH DECEASED PERSONS.

In an action in tort against a wholesaler for the death of a retailer using as medicine ginger extract containing wood alcohol sold by the former to the latter and his partner in business under the representation that the extract was used for medicine and was harmless, the partner was competent to testify that the salesman of the wholesaler selling the extract represented that the extract was used for medicinal purposes and was harmless, though the salesman was dead, notwithstanding the statute providing that, in actions where one of the original parties to the contract or cause of action is dead, the other party shall not be permitted to testify in his own favor or in favor of one party to the action claiming under him, since he was not interested in the outcome of the suit.

2. POISONS (§ 6)—LIABILITY OF MANUFACTURER OR DEALER—WHAT LAW GOVERNS.

Where a wholesaler selling ginger extract containing wood alcohol guaranteed that it was pure and fit for medicinal purposes and shipped the goods to the buyer according to the order therefor, a cause of action for the death of the buyer using the article for medicine did not accrue at the residence of the wholesaler, but where the buyer obtained and used the goods.

3. DEATH (§ 68) — ACTION FOR NEGLIGENT DEATH—EVIDENCE—ADMISSIBILITY.

In an action by a widow and minor children for negligent death, the character of the husband and father is admissible in determining the amount of pecuniary damages.

4. POISONS (§ 6)—MANUFACTURER OR DEALER —LIABILITY.

A manufacturer or dealer is liable to one injured by poison sold by him, though the injured person was not the purchaser of the same from the manufacturer or dealer, provided the injury complained of was the direct, natural, and probable consequence of the manufacturer's or dealer's negligence in preparing the article.

5. POISONS (§ 6)—MANUFACTURER OR DEALER —LIABILITY.

Where a manufacturer or dealer in drugs puts a label on the article indicating that it is harmless, and the label is false, and the article is poisonous, he is, as a matter of law, negligent and is liable for injuries sustained by one using the article.

6. PRINCIPAL AND AGENT (§ 158)—FRAUD OF AGENT—LIABILITY OF PRINCIPAL.

Any fraud perpetrated by an agent on a third person in the course of his employment and for the benefit of the principal is imputed to the principal, whether he had actual knowledge of it or not.

7. PRINCIPAL AND AGENT (§ 115)—FRAUD OF AGENT—LIABILITY OF PRINCIPAL.

One permitted by a wholesaler to solicit orders for goods of the wholesaler has apparent authority to make representations concerning the quality and usefulness of the articles sold.

8. ACTION (§ 27)—NATURE OF ACTION—CONTRACT OR TORT.

A petition, in an action for death caused by a buyer using as medicine ginger extract sold to him by defendant through his salesman, which alleges that defendant represented to the buyer that the extract was of its own manufacture and was generally used for medicine and was harmless, that the extract sold was prepared of wood alcohol and was a deadly poison, and that the death of the buyer was due to the wrongful and careless act of defendant in selling the poison, states a cause of action in tort and not on contract.

9. NEGLIGENCE (§ 136)—QUESTION FOR JURY.

Where the evidence on an issue of negligence is all one way, but is of such a character that reasonable minds may differ with respect to it, the case is for the jury.

Appeal from St. Louis Circuit Court; Virgil Rule, Judge.

Action by Martha J. Darks and others against the Scudders-Gale Grocer Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Jones, Jones, Hocker & Davis, for appellant. Johnson, Houts, Marlatt & Hawes and W. W. Wood, for respondents.

GRAY, J.

The plaintiffs are the widow and minor children of Roscoe C. Darks, deceased, who lived and died at Wetumka, Okl., where, during his lifetime, he conducted a general merchandise and grocer business in partnership with one Williams, under the firm name of Williams & 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, Okl., 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 & 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 & 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 $5,000, from which this appeal is prosecuted.

The petition charges that the defendant represented to Williams & 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; that the same was purchased by Williams & Darks for use and sale in their trade at Wetumka, Okl.; 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 of May 2, 1890 (Act May 2, 1890, c. 182, 26 Stat. 81), 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 Mfg. 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 2½ to 2¾ ounces of liquid, about 10 per cent. of which was oleo-resin of ginger, and about 85 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 inclosed 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; 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 Bros. Drug Store in St. Louis; 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; that, 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 & Darks...