Tidd v. Skinner — 34 N.Y. Crim. 196

Majority

p. 196

SUPREME COURT—THIRD DEPARTMENT,

Jan. 5. 1916.

MARGARET TIDD v. C. B. SKINNER et al.

(171 App. Div. 98.)

Headnote

(1.) Public health law—Section 238—Sale of heroin to minor.

A mother, entitled to the services of a minor son, may recover in an action against druggists who sold to her son a poisonous drug known as heroin, where it appears that as the result of the sales the son became an habitual user of the drug and a physical, mental and moral wreck, unable to perform any labor, so that she was deprived of his services.

(2.) Same.

Where it appeared that the defendants ignored the provision of section 238 of the Public Health Law, forbidding them to sell the drug without affixing to each package a label containing the name of the article and the word poison, and unmindful of the consequences sold heroin to the plaintiff’s son for several months in large quantities, amounting on one "occasion to 1,000 pills in a week, there was such reckless disregard of the rights of others that punitive as well as compensatory damages may be awarded.

Appeal by the defendants, C. B. Skinner and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schenectady on the 9th day of July, 1915, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 13th day of July, 1915, denying defendants’ motion for a sew trial made upon the minutes.

Christopher J. Heffernan, for the appellants.

James J. Barry [Frank Cooper of counsel], for the respondent.

A mother brings this action against a firm of druggists for having sold to her minor son a certain poisonous drug known as heroin. She alleges that as a result of these sales her son became an habitual user of heroin and thereby became a physical and moral wreck, unable to perform any labor, and that his health was ruined and his mind destroyed, whereby she was deprived of his • services and has been greatly damaged. The plaintiff’s husband, the father of the minor, was dead at the time of the acts complained of. The facts were submitted to a jury and a verdict has been returned in favor of the plaintiff for $2,000 compensatory damages, and $1,000 punitive damages.

Our examination of the record convinces us that the numerous sales of this drug to the plaintiff’s son, continuing over a long period of time, has been established by overwhelming evidence. We say overwhelming notwithstanding the fact that the three principal witnesses for the plaintiff were each drug fiends and were each criminals. Being thus fixed in our opinion that the jury was well warranted in finding that the sales had been made at the times and in the quantities complained of, we have no disposition whatever to disturb the verdict as being against the weight of evidence.

And we believe that the evidence shows that the plaintiff was, in fact, actually damaged. The proof shows that previous to his acquisition of the drug habit the young man earned considerable money. He was something over eighteen years of age. The evidence as to his earning capacity was explicit and much of it came from the mouth of a disinterested witness. The lad was employed at Schenectady by the General Electric Company and an official in charge of the books was produced and the exact amount of his earnings was shown. It appears from these books that his wages ranged from forty dollars to fifty dollars a month. He also earned money as a

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singer, sometimes fifteen dollars per week. He was also useful to his mother about the house doing chores and doing errands and making himself useful in other ways as dutiful boys of that age usually do. The compensatory damages fixed by the jury cannot, therefore, be said to be an exaggerated estimate.

The action is said to be a novel one. In some respects this is true, although the principle on which the cause of action is based is not novel but has been known and recognized by the courts for centuries. By whatever name this action may go the fact is that the property rights of the plaintiff have been trespassed upon and she is simply suing for reimbursement. The services of her son, to which she was legally entitled, have been destroyed, so she alleged and so the jury has found, and she is only asking pay for this damage done. The plaintiff bases her claim upon the same principle which underlies the cause of action accruing to a father in case of the abduction of his daughter; or to a husband in case of the alienation of his wife’s affections. Precedent is not necessary in order that the plaintiff may recover here. If the rights of the plaintiff have been invaded there must be redress. But there is a precedent—an adjudicated case closely resembling this— (Hoard v. Peck, 56 Barb. 202 .) It is that case that we are following in our determination here. But it is said that Hoard v. Peck is not just like this case. No two cases are just alike. Facts usually differ; principles are eternal.

At the time of the various sales complained of, section 238 of the Public Health Law (Consol. Laws, chap. 45 [Laws of 1909, chap. 49], as renumbered from § 236 and amd. by Laws of 1910, chap. 422),^[1] read with section 241 of said statute (as added by Laws of 1910, chap. 422),* forbade a druggist to sell morphine or opium or their preparations, except as therein stated, without affixing to each package sold a label containing

* Since amd. by Laws of 1915, chap. 502.—[Rep.

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the name of the article and the word poison distinctly written or printed thereupon in red ink. This requirement of the law the defendants wholly failed to observe. Ignoring this statute completely they sold day after day, week after week, and month after month, large quantities of this poisonous and ruinous drug to this misguided youth. On one occasion 1,000 pills were sold to him in a week—enough poison to kill many normal people. But notwithstanding this condition of affairs, amply proven at the trial, the defendants complain of the punitive damages which have been assessed against them. Unless there is either evil intent on the part of the defendant, or a reckless disregard of the rights of others, there can be no punitive damages. The evidence in this case does not go to the extent of establishing an evil purpose to destroy the health and activities of this young man; but the proof does abundantly establish, in our judgment, that the defendants were wholly reckless of the rights of others. It establishes that the defendants, impelled by the instinct for gain and profit, absolutely disregarding the health and future of this young man, and wholly unmindful of the consequences to his mother, sold him this drug, and continued to sell it to him long after they discovered its deleterius effects upon his system. To say that they did this innocently affronts the reason. These defendants were pharmacists, skilled in the science of mixing drugs; they knew their purposes, uses and effects. They knew the subtle, sinister, destructive effect on the human system of this offspring of opium. They knew of its malicious and unconquerable mastery over the human mind; knew of its inexorable demands upon its victims. But it was not necessary to be a pharmacist to know this—every layman knows it. However, in the face of this general knowledge of the baneful effects of heroin, and in the face of their constant daily observation of the actual deadly effects upon the victim whom they were supplying with it, these defendants, actuated

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only by greed, continued for many months to sell it to this young man and his deluded companions. During the time which these defendants were supplying this drug to the young man he became a vagabond, an idler, a drug fiend and a criminal; undutiful to his mother, worthless to himself, dangerous to the community. The jury was right in concluding that all this was the result of the illicit traffic carried on by these defendants, and that they should be punished for their reckless disregard of the rights and welfare of this boy and his mother.

Our attention has been called to several alleged errors and irregularities during the trial, but upon careful examination of them all we do not find anything in the record which calls for a reversal of the judgment. The charge of the learned trial court is particularly criticised by the appellants. Although the charge is strong and forceful, and in some places somewhat more eloquent than necessary, we do not consider it intemperate, and do not think that it was calculated to, or did in any degree, bias the jury against the defendants.

The judgment and order appealed from should be affirmed, with costs.

Judgment and order unanimously affirmed, with costs.

Cases cited

Hoard v. Peck 56 Barb. 202 N.Y. Sup. Ct. 1867-10-01 p. 198