Meyer v. King

Decision Date15 October 1894
CourtMississippi Supreme Court

FROM the circuit court of Warren county. HON. JOHN D. GILLAND Judge.

The facts are stated in the opinion.


McLaurin & McLaurin, for appellant.

1. A civil wrong and a crime, though both proceeding from one act are legally distinct; and, where the injury is one that falls on the entire community, an individual suffering from it only as others do, can maintain no action against the wrongdoer even if it should, in a degree, press more heavily upon him than upon the others. But he who suffers special damage may have his suit, though, by reason of the public harm, the defendant is also indictable. Bishop on Non Contract L., §§ 71, 79. We think the same doctrine is deducible from the cases of Wooten v. Gwin, 56 Miss. 422; Dunn v. Kelly, 57 Ib., 825; Cohn v. Smith, 64 Ib., 816. There is civil liability for violation of a penal statute in favor of one suffering special damages.

2. The law places minors and imbeciles on the same footing as to the liability of other people for their negligence in dealing with them, and as to their being responsible or not for contributory negligence. The fact that a minor was intoxicated in no way excuses the other party from his duty to him as minor. It would seem, rather, to increase his duty to be cautious where the party knows of the intoxication. One has no right to demand of a child, or any other person known to be wanting in judgment, ordinary discretion, or prudence beyond his years or capacity, and, therefore, in his own conduct towards him, where it may possibly result in injury, a degree of care is required commensurate with the apparent immaturity or imbecility that exposes the other to peril. Cooley on Torts, 683. The declaration alleges that the minor was of tender years. He cannot, therefore, have contributed to the injury. Mackey v. Vicksburg, 64 Miss. 777. See, also, Westbrook v. Railroad Co., 66 Ib., 560; Whittaker's Smith on Negligence, 411; Vicksburg v. McLain, 67 Miss. 4. The simple allegation that deceased was a minor was sufficient to put defendant on proof of his age and mental capacity, if the defense of contributory negligence is relied on. The declaration further alleges that defendant, when he sold the poison, knew of the mental condition of Meyer. Even if Meyer was guilty of contributory negligence, after the defendant knew of his peril, he was bound to use a reasonable degree of care to avoid the consequence of such negligence. Christian v. Railroad Co., 71 Miss. 237; Jamison v. Railroad Co., 63 Ib., 33. It cannot be said that defendant drank of the poison of his own free will, and that this was the proximate cause of the injury. Being of tender years, and thoroughly drunk, he had no free will. See Dunlap v. Wagner, 85 Ind. 529.

Dabney & McCabe, for appellee.

Unless § 1252, code 1892, makes druggists responsible per se, the action of the court below was correct. The declaration does not allege that defendant knew, or had reason to believe, that Meyer would drink the poison, or that the poison was attractive or inviting to a child, or any person. The court will indulge no presumption as to this, no matter how much the person was intoxicated. It is not alleged that the minor had not reached years of discretion. The words "tender years" are uncertain, and have no legal signification, and are inadequate to sustain the burden resting upon plaintiff. On the contrary, the allegations that he was a clerk in a grocery store, and that he was about town drunk, show him to have been old enough to have full discretion.

The boy drank the poison himself, of his own free will, and this was the proximate cause of the injury. Mere violation of a statute does not make one liable for damages sustained, unless the violation be the proximate cause of injury. Railroad Co. v. McGowan, 69 Miss. 682; King v. Henkie, 80 Ala. 505. If it be true that the state of mind of the boy was analogous to that of one non compos, or insane, thus rendering him morally unaccountable, it is still true that it is due to his negligence and wantonness, without which the injury would probably not have occurred. See 1 Suth. on Dam., 56, 57, 70.



This is an action instituted under § 663, code 1892, by appellant to recover damages for the loss of the services of his minor son, resulting from his death by reason of the negligence, as alleged, of appellee, a druggist in the city of Vicksburg, in selling to said minor, in wilful violation of § 1259, code 1899, chloroform, which, after such sale, he drank and died. There were two declarations. The first contained two counts. In the first count it is alleged that the minor was "a minor of tender years, who was at this said time (the time of sale) employed as a clerk in a grocery store, and was earning for such services, a reasonable and substantial compensation," and that on "February 20, 1894, he applied to appellee to purchase two ounces of chloroform, the same being a dangerous and deadly poison, and of that class of drugs which, by statute, druggists are prohibited from selling to minors," and that the appellee, "in wilful, negligent and open violation of the statute, sold said poison to said minor, and said minor did soon thereafter take said poison internally, and by reason thereof in a few hours died."

The second count describes the minor simply as "a minor," omitting the phrase "of tender years," and adds that the sale was made to him "while he was intoxicated, from an excessive use of liquor, to such an extent that he was wholly incapable of exercising any reasonable degree of caution or prudence, and to a degree that was evident from his general appearance."

Appellee interposed a demurrer, upon the grounds, first, that it did not appear that the sale was the proximate cause of the injury; second, that the minor was himself guilty of the act which caused the injury, and that it did not appear that the minor was not of years of discretion; third, that the minor would have had no right of action, and, hence, the appellant had none; and, sixth, that the declaration did not show that the defendant knew, or had reason to believe, that the chloroform would be taken or used by the said minor to his injury or detriment, etc. The demurrer was sustained.

Appellant then filed an amended declaration, setting out the same facts as in the second count of the original declaration, adding that the appellee "kept in stock various poisons, which, from their very nature, it was incumbent on her to handle with great caution, and to sell such drugs to only such persons as she knew to be cautious and prudent, or to whom, from their general appearance, she would reasonably suppose were prudent and cautious, and capable of using said drugs as prudent, cautious, and intelligent people commonly do."

The same demurrer was interposed to this declaration and sustained, and the suit dismissed, and this action of the court is the error assigned.

Counsel for appellant insists that the first count of the first declaration presents the minor as one not of years of discretion, and, hence, not chargeable with contributory negligence. The phrase "minor of tender years," occurring in pleadings in various connections--as, in answers of guardians ad litem appointed for minors in probate proceedings--may embrace as well minors of twenty years as twenty months. Counsel cites Whittaker's Smith on Negligence as saying: "The doctrine of contributory negligence does not apply to infants of tender age." But the remark cited by counsel is quoted, and the author then says: "This rule is scarcely satisfactory, because it is difficult to say what is or is not a tender age; but a better rule, which would probably excuse the negligence of a child of tender age, is that a child is only bound to exercise such a degree of care as children of his particular age may be presumed capable of exercising." Whittaker's Smith on Neg., p. 411. It was easy for appellant to have stated the particular age.

In Westbrook v. Railroad Co., 66 Miss. 560, 566, 6 So. 321; Vicksburg v. McLain, 67 Miss. 4, 6 So. 774; and Mackey v. Vicksburg, 64 Miss. 777, 2 So. 178--cases invoked by counsel--the age is set out in the declaration, in the first and last at six years, in the second at eight. Whether, however, the phrase "minor of tender years," standing alone in a declaration in an action ex delicto, should be held, in the face of the rule that pleadings must be taken most strongly against the pleader, as importing legally a minor not of years of discretion, we are not called on to decide, for the declaration adds, as indicating age, that he was "employed as clerk in a grocery store, and earning a reasonable and substantial compensation," which was received by appellant, and used "to support said minor's mother." Under these allegations, this count presents a minor of years of discretion, capable of contributory negligence. So treating him, does the first count present a cause of action?

It will be observed the count does not allege that the minor was inexperienced in the use of chloroform, that there was anything in the character or disposition of the minor that rendered it dangerous to put the chloroform in his hands, or that he was ignorant of its use.

In Poland v. Earhart, 70 Iowa 285, 30 N.W 637, the defendant had sold a minor, in contravention of statute, a pistol. The minor accidentally shot himself. The court says: "The immediate cause of these injuries was not the sale of the weapon but the accident which subsequently occurred. If plaintiff, then," the mother, "has a cause of action, it must be founded on the fact that the accident . . . might reasonably have been...

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