Tidd v. Skinner

• Decision Date: 28 January 1919
• Citation: 225 N.Y. 422,122 N.E. 247
• Parties: TIDD v. SKINNER et al.
• Court: New York Court of Appeals Court of Appeals

225 N.Y. 422

122 N.E. 247

TIDD

v.SKINNER et al.

Court of Appeals of New York.

Jan. 28, 1919.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Margaret Tidd against C. B. Skinner and S. W. Skinner, doing business under the name, style, and title of C. B. Skinner & Co. From a judgment of the Appellate Division (171 App. Div. 98,156 N. Y. Supp. 885), affirming a judgment of the trial term for plaintiff, defendants appeal by permission. Modified, and, as modified, affirmed.

See, also, 100 Misc. Rep. 734, 179 App. Div. 952,165 N. Y. Supp. 1013.Christopher J. Heffernan, of Amsterdam, for appellants.

Frank Cooper, of Schenectady, for respondent.

CHASE, J.

This action is brought by a widow to recover damages for loss of the services of her son, which she alleges was caused by the defendants as herein stated. The defendants at the times herein mentioned were druggists of experience engaged in conducting retail drug stores, one of which was in the city of Amsterdam. The plaintiff at the times herein mentioned lived in the city of Schenectady. She had a son who at 18 years of age was of good physique and fair ability. He lived with his mother, and was employed by others at remunerative wages. The mother, except for the aid of the son, was dependent upon her labor to maintain her household. The son was kind, helpful, and obedient to his mother, and brought to her all or a substantial part of his earnings. About that time, and within four or five weeks before January 1, 1912, he was given 15 or 20 tablets, each containing from one-twelfth to one-eighth of a grain of heroin, by a boy friend. During that time he used these tablets, and he testified: ‘I felt like I wanted it. I liked it.’

[1] Heroin is a derivative of morphine. It is a poison within the provisions of the Public Health Law (Consol. Laws, c. 45) as it existed at the times herein mentioned (Public Health Law, § 238, as it existed prior to the amendment by chapter 502 of the Laws of 1915). The statute referred to provided:

‘It is unlawful for any person to sell at retail or to furnish any of the poisons of Schedules A and B [Schedules A and B as contained in section 241 of the Public Health Law] without affixing or causing to be affixed to the bottle, box, vessel or package, a label with the name of the article and the word ‘poison’ distinctly shown and with the name and place of business of the seller all printed in red ink together with the name of such poisons printed or written thereupon in plain, legible characters.'

It also provided:

‘Every person who disposes of or sells at retail or furnishes any poisons included in Schedule A shall before delivering the same enter in a book kept for that purpose the date of sale, the name and address of the purchaser, the name and the quantity of the poison, the purpose for which it is purchased and the name of the dispenser. The poison register must be always open for inspection by the proper authorities and must be preserved for at least five years after the last entry. He shall not deliver any of the poisons of Schedule A or B until he has satisfied himself that the purchaser is aware of its poisonous character and that the poison is to be used for a legitimate purpose.’

Any person who violates any of the provisions of the Public Health Law mentioned is guilty of a misdemeanor. Penal Law (Consol. Laws, c. 40) § 1743.

The defendants at all the times mentioned knew of the existence of the statutes relating to the sale of poisons. The jury could have found from the evidence that about January 1, 1912, plaintiff's son went to Amsterdam from Schenectady and endeavored to purchase heroin of the defendants, but was asked if he had purchased it of them before, and when he answered in the negative was told that they could not sell it to him. Soon thereafter he went again to Amsterdam, and to the defendant'sstore. His boy friend was with him, and his friend said to one of the defendants that he (plaintiff's son) ‘was all right if he wanted to buy any heroin.’ Thereafter, and on the same day, plaintiff's son went alone to the defendants and purchased from them 200 tablets. From that time until he became 21 years of age, a period of between 2 and 3 years, he purchased of the defendants, except during the times when he was in a hospital or confined under criminal process, more than 300 tablets per week. One week he purchased of them 1,000 tablets. Each of the tablets so purchased contained either one-twelfth or one-eighth of a grain of heroin. During a part of the time plaintiff's son personally pulverized and inhaled 75 to 100 tablets per day. He became a physical wreck. He not only abandoned his work, but he pawned his clothing and also carpets, rugs, and furnishings from his mother's home to obtain money to buy the drug. At the time of the trial he was brought as a witness from the county jail, where he was serving a term for petit larceny.

The defendants wholly failed to obey the statutes quoted, knowing that heroin, except as a medicine used in very small quantities and under the direction of a physician, is a poison dangerous to human life.

The jury could have found that one of the defendants stated to the plaintiff's son that he should be careful not to let any one know that he was getting heroin at the defendant's store, as it might make trouble for them. They could also have found that the change in the habits and physical condition of plaintiff's son, and his consequent conduct and general incapacity, were the results of the use of heroin purchased of the defendants; that in selling it to him as stated they knew that he was making an improper use of it, and that its use was injuriously affecting his health, and that their conduct in the repeated sales to him in the manner and to the extent as shown was reckless and equivalent in law to willful injury. Upon the facts necessarily found in this case the sales were entirely different from those ordinarily made by a druggist at the request of a customer.

[2] The jury found for the plaintiff, and an appeal was taken from the judgment entered upon their verdict to the Appellate Division, where the judgment was unanimously affirmed (171 App. Div. 98, 34 N. Y. Cr. R. 196, 156 N. Y. Supp. 885), the court expressly stating in its opinion that the verdice was not against the weight of evidence, and that ‘the proof does abundantly establish * * * that the defendants were wholly reckless of the rights of others.’ The judgment of the trial court entered upon the verdict of the jury having been unanimously affirmed by the Appellate Division, it is on this appeal incontrovertibly established that the facts presented at the trial sustain the verdict. Const. art. 6, § 9; Code of Civil Procedure, § 191. The judgment must be sustained by this court unless error was committed in the rulings upon the admission or rejection of evidence or in the charge by the court to the jury.

[3] Numerous questions are presented to us by the appellants arising from rulings of the court upon objections to the receipt of evidence during the trial. The appellants claim that the court erred in receiving evidence to show that the plaintiff's son had taken carpets and rugs from the floor of her home and pawned them, and also to show his other efforts to obtain money to purchase heroin. We do not think that the court erred in the rulings mentioned. It was a part of the history of the son during the time mentioned, and tended to show the dominating influence that heroin had over his time and his thought as it affected his time, and the consequent loss of his services to his mother.

[4] There were no exceptions taken to the main charge of the court except those relating to punitive or vindictive damages. The only exceptions taken by the defendants to their request to charge made at the close of the main charge, other than those relating to punitive or vindictive damages hereinafter referred to, were taken in connection with other statements and charges by the court, all of which we quote as follows:

‘Mr. Heffernan: I ask your honor to charge that the defendants had a legal right to sell and offer for sale heroin between the 1st day of January, 1912, and the 1st day of July, 1914, without the direction or prescription of a physician on complying with the terms of the statute as to registering it and labeling it.

‘The Court: I will charge the jury that at the time of the sales in question, if there were such sales, there was no statute of the state which prohibited the sale by these defendants of the drug known as heroin without a doctor's prescription, and I also charge the jury that cases can arise where the sales are so excessive and made with such purpose that a civil action will lie for damages resulting from such sales, in which case the sales could not be termed rightful.

‘Mr. Heffernan: The defendants except to your honor's modification. I ask your honor to charge the jury that in order to find a verdict for the plaintiff the jury must be satisfied from the evidence that the defendants sold heroin to Rooney, knowing that Rooney was making an improper use of it, and that its use was injuriously affecting his health.

‘The Court: I so charge.

‘Mr. Heffernan: I ask your honor to charge the jury that there is no evidence in this case upon which the jury can find that the defendant knew, or had reason to know, that Rooney's health was being injuriously affected by heroin.

‘The Court: I decline to charge that on the ground that the defendant was a pharmacist, and from his position as a pharmacist the jury might infer that he had knowledge of the drug heroin and of its consequences, and also from the size of the doses claimed to have been sold.

‘Mr. Heffernan: We except to your honor's modification. I ask your honor to charge that if the defendants, between January 1, 1912, and June, 1914, sold heroin in the ordinary course of business to Rooney or to others on their...