Holleman v. Harward

• Decision Date: 24 November 1896
• Citation: 25 S.E. 972,119 N.C. 150
• Court: North Carolina Supreme Court
• Parties: HOLLEMAN v. HARWARD et al.

25 S.E. 972

119 N.C. 150

HOLLEMAN

v.HARWARD et al.

Supreme Court of North Carolina.

Nov. 24, 1896.

Sale OF Opium to Wife — Right OF Action by Husband.

An action for damages will lie at the suit of a husband against a druggist who, in violation of the express orders of the husband, has sold laudanum and similar preparations to the wife, in consequence of which she has become a confirmed subject of the opium habit, resulting in the loss of her services and companionship.

Appeal from superior court, Wake county; Mclver, Judge.

Action by Nathan Holleman against W. H. Harward and others. A demurrer to the com plaint having been sustained, the plaintiff appeals. Reversed.

The following is the complaint: "(1) That the defendants are residents of Wake county, and the town of Apex, and are now doing business under the name of Harward & Hunter, and have been so trading for the last ten or twelve years, keeping a general stock of goods, including drugs, poisons, opium, laudanum, etc. (2) That plaintiff is a resident of said town of Apex, and has been, with a short interval, since 1875; that he has a family, consisting of a wife and six children, —four boys and two girls, —some of whom are of tender years, and all of whom are minors; that he is a poor man, dependent entirely upon his labor to secure a support for himself, his wife, and his children; and for the regulation and disposition of his household affairs, and the supervising and direction of his children during his absence from home at his labor, he has been and is wholly dependent upon his wife. (3) That about the year 1880 his wife became temporarily afflicted, was forced to take preparations of opium for relief, and so began the habit of using opium in its different forms, principally laudanum; that, so soon as the plaintiff discovered that his wife was contracting the habit, he set himself to work to cure her, and prevent the further use of it, and in pursuance of this purpose aud endeavor informed the defendants of the fact, and forbade their selling his wife opium in any form or combination, except upon his own order; and that theretofore the defendants had been selling laudanum to the plaintiff's wife, and knew that she was addicted to the undue use thereof as a beverage. (4) That, notwithstanding the protest and warning which the plaintiff has from time to time and frequeatly made to and given the defendants against selling or furnishing his wife laudanum or opium in any form or combination, the said defendants have knowingly, willfully, persistently, unlawfully, and in utter disregard of the plaintiff's rights and the welfare of his wife, continued up to the beginning of this action and since, —that is, up to April, 1895, —to sell and furnish to the said wife laudanum in large quantities, almost daily, for a beverage. (5) That defendants well knew at the time they were so selling and furnishing the plaintiff's wife, Mary S. Holleman, with the said laudanum and opium, that she had become what is termed and known as an opium or morphine eater, and that through the constant use of the same she was wrecking both ner mind and body, and that the plaintiff was striving earnestly, anxiously, and constantly to counteract the effects of the dreadful and ruinously disastrous habit (6) That by the use as a beverage of opium, mostly in the form of laudanum, sold knowingly, willfully, constantly, unlawfully, and persistently against the protest ot the plaintiff, furnishedthe plaintiff's wife by the defendants, she has become a mental and physical wreck, and almost deprived of moral sensibility, and has become unfitted and disqualified to attend to her household duties, or me care and nurture and direction of her children, and that by the means aforesaid so furnished by the defendants knowingly, willfully, and unlawfully, the plaintiff has been deprived of the society of his wife, of her service in her home, his children have suffered from neglect and want of motherly care, and his home has thereby and by the instrumentality of the defendants been rendered a waste, and a place of suffering and distress, Instead of a joy and comfort. (7) That, but for the action of the defendants in selling and furnishing the plaintiff's wife laudanum and opium as aforesaid, the plaintiff would have been able to have counteracted the habit, which was only forming at the time the defendants began to furnish her with the said deadly drug, and his said wife, instead of being a burden from mental and physical and moral imbecility, would have been a joy, a comfort, and a helpmeet for him. (8) That by the means aforesaid, and the knowing, willful, and unlawful violation of the plaintiff's rights as aforesaid, the plaintiff has been greatly damaged, to wit, to the amount of $3,000. Wherefore the plaintiff demands judgment (1) that he recover of the defendants the sum of three thousand dollars; (2) for costs, and other and further relief."

Judgment: "This action coming on for trial, and the defendants demurring ore tenus on the ground that the complaint does not state facts sufficient to constitute a cause of action, after argument by counsel for both sides, it is considered and adjudged that the demurrer be sustained, and that the defendants go without day." From this judgment the plaintiff appealed.

Argo & Snow, for appellant.

Battle & Mordecal and H. E. Norris, for appellees.

MONTGOMERY, J. This action was brought to recover of the defendants damages for injuries alleged to have been sustained by the plaintiff in consequence of the defendants having sold laudanum to his wife, the defendants being druggists, and knowing that the plaintiff's wife was using the same in large quantities, and as a beverage, to the injury of her health. A demurrer ore tenus on the ground that the complaint did not state facts sufficient to constitute a cause of action was sustained by his honor. The defendants had answered, denying all the material allegations of the complaint, but, for the purposes of this action, the demurrer having been entered and sustained, the matters alleged...