Ellis v. Lindmark
| Decision Date | 10 May 1929 |
| Docket Number | No. 26873.,26873. |
| Citation | 225 N.W. 395,177 Minn. 390 |
| Parties | ELLIS et al. v. LINDMARK et al. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Carlton County; E.J. Kenny, Judge.
Action by Levi E. Ellis and others against J.W. Lindmark and the Minneapolis Drug Company. There was a verdict for plaintiffs, and defendant first named appeals from an order denying his motion for a new trial, and defendant last named appeals from an order denying its alternative motion for judgment notwithstanding the verdict or a new trial. Affirmed.
C.J. Dodge, of Moose Lake, and McClearn & Gilbertson, of Duluth, for appellant Lindmark.
Jamison, Stinchfield & Mackall, of Minneapolis, for appellant Minneapolis Drug Co.
Jenswold, Jenswold & Dahle, of Duluth, for respondents.
Action to recover damages for the negligence of the defendants. There was a verdict for the plaintiffs. The defendant Lindmark appeals from the order denying his motion for a new trial. The defendant drug company appeals from the order denying its alternative motion for judgment notwithstanding the verdict or a new trial.
The defendant Lindmark is a retail druggist in Moose Lake, Carlton county. The defendant Minneapolis Drug Company is a wholesale druggist in Minneapolis. On February 5, 1927, Lindmark ordered through the traveling salesman of the drug company a barrel of cod liver oil. He told him that he wanted a good grade of cod liver oil for poultry. The plaintiffs and other poultry raisers had requested him to order in bulk. Before that he had ordered in bottles or containers. A barrel of raw linseed oil was sent him. It was invoiced as cod liver oil. On the freight bill it was designated cod liver oil. It was taken by the drayman employed by Lindmark and unloaded in the basement of his store, bung end up. The other end was labeled linseed oil. He siphoned oil from it for the plaintiffs, and they used it in a mash for their poultry. They questioned whether it was cod liver oil, asked him about it, and were assured that it was.
The questions are:
(1) Whether the drug company was negligent.
(2) Whether Lindmark was negligent.
(3) Whether, if both Lindmark and the drug company were negligent, the negligence of Lindmark was an intervening and the sole proximate cause, relieving the drug company, or whether both were liable.
(4) Whether the plaintiffs were guilty of contributory negligence preventing recovery.
(5) Whether the plaintiffs, since they had no contract relations with the drug company, and considering the nature of the substance sold, could recover.
(6) Whether evidence of others who had used the same oil with like consequences was competent.
(7) Whether the damages were conjectural and speculative or so remote as to prevent recovery.
(8) Whether the damages awarded are excessive.
1. We have no difficulty in sustaining the finding of the jury that the drug company was negligent in sending raw linseed oil instead of the cod liver oil ordered. Some one connected with it and for whose act it was responsible was careless and blundered. The mere statement of the facts is sufficient to justify a finding of negligence.
2. The evidence sustains a finding that Lindmark was negligent. He was a pharmacist of many years' experience. He siphoned the oil from the barrel. He had the opportunity of knowing from the sense of taste and smell and sight the character of the substance. He had dealt in cod liver oil and linseed oil before. When his attention was called to the character of the oil by the plaintiffs, he assured them that it was good cod liver oil. There is no reason for questioning the jury's finding of the negligence of Lindmark.
3. The negligence of Lindmark was not as a matter of law an intervening and the sole proximate cause. The drug company knew that Lindmark wanted cod liver oil, and knew through its representative that he wanted it for poultry raisers, and of course knew that it was to be sold as cod liver oil to consumers. We see nothing requiring a holding that Lindmark's negligence interrupted the negligence of the drug company and was the sole proximate cause of the result which followed. The jury was justified in finding that both were negligent, that the negligence of each contributed, and that their negligence was concurrent. Moehlenbrock v. Parke, Davis & Co., 141 Minn. 154, 169 N.W. 541; Meshbesher v. Channellene Oil Co., 107 Minn. 104, 119 N.W. 428, 131 Am. St. Rep. 441; Farrell v. G.O. Miller Co., 147 Minn. 52, 179 N.W. 566; Kentucky Ind. Oil Co. v. Schnitzler, 208 Ky. 507, 271 S.W. 570, 39 A.L.R. 979; Liberty Mutual Ins. Co. v. Great Northern R. Co., 174 Minn. 466, 219 N.W. 755, and cases cited; 2 Dunnell, Minn. Dig. (2d Ed.) § 2528; 4 Dunnell, Minn. Dig. (2d Ed.) § 6999. Goar v. Village of Stephen, 157 Minn. 228, 196 N.W. 171, is not opposed.
4. The plaintiffs cannot be charged as a matter of law with contributory negligence in using the linseed oil. There was no negligence in their taking it from the store. They took it in a container which had been used before for cod liver oil. They became suspicious. They went to Lindmark and queried him about it, and were assured that the oil was genuine cod liver oil of excellent quality. He was supposedly skilled as a pharmacist. They were not much experienced. They had dealt with him before. Naturally enough they would rely upon him. It was for the jury to say whether they were contributorily negligent. Fisher v. Golladay, 38 Mo. App. 531; Wright v. Howe, 46 Utah, 588, 150 P. 956, L. R.A. 1916B, 1104; Moran v. Dake Drug Co. (Sup.) 134 N.Y.S. 995, affirmed in 155 App. Div. 879, 139 N.Y.S. 1134. That they did not desist from its use upon first suspicion does not as a matter of law show them to be negligent. Bark v. Dixson, 115 Minn. 172, 131 N.W. 1078, Ann. Cas. 1912D, 775.
5. The drug company claims that the plaintiffs have no cause of action against it. It invokes the principle that the seller of a defective article or substance not in itself dangerous to a retailer, who in turn sells it to the ultimate consumer, who suffers damage from its use, is not liable at the suit of the consumer unless in a class of exceptional cases to which this does not belong. The claim is urgently pressed and is not without force.
There was no contractual relation between the plaintiffs and the drug company. The plaintiffs' contract was with Lindmark. Neither the raw linseed oil nor the cod liver oil was a dangerous substance. Nor were they substitutes. They could not be used interchangeably.
The cases are involved and not subject to a satisfactory classification. Sometimes liability is asserted on the ground of implied warranty; sometimes on the ground of false representation; sometimes the seller has violated a statute and thereby becomes liable as if for negligence; sometimes the action is based as here on actual negligence; sometimes the article sold is a deadly or injurious poison; sometimes it is unwholesome food or an impure beverage intended for human consumption; sometimes the article is intrinsically dangerous; sometimes it is defective machinery, or an automobile with defective parts, the use of which results in harm to a third person; and sometimes recovery is denied in case of property damage though permitted in the case of injury to the person.
We make no attempt to review the cases. Concededly they are in confusion. The case before us does not seem particularly difficult. The claim is not that the drug company delivered an inherently dangerous substance, but that it delivered a substance not ordered, and that damage resulted when such substance was used for the purpose for which that ordered was to be used. When the original seller negligently makes a mistake and his vendee is also negligent and harm results to one innocently purchasing, the law should put liability upon both parties. This is such a case. And though there are an abundance of cases to the contrary, the larger number perhaps in accord with them, there are plenty holding in principle the rule which we adopt. Moehlenbrock v. Parke, Davis & Co., 141 Minn. 154, 169 N.W. 541 (); Farrell v. G.O. Miller Co., 147 Minn. 52, 179 N.W. 566 (); Meshbesher v. Channellene, etc., Co., 107 Minn. 104, 119 N. W. 428, 131 Am. St. Rep. 441 (...
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