SPECIAL CHARGES RELATING TO THE SALE OF POISON.
[Superior Court of Cincinnati, General Term.]
Ellen M. Galvin v. B. H. Overbeck.
Decided, December 17, 1903.
Druggist — Sale of Arsenic by — To a Servant Girl He did not Know— Alleged to have been Mentally Irresponsible — Special Charges by the Court as to Negligence — The Singling out of a Single Act of Negligence.
1. Special charges which single out a special fact or facts upon which the plaintiff relies in proving negligence against the defendant, and which direct the jury that such fact does not, or such facts do not, constitute negligence, are misleading in that there is a tendency to distort such fact or facts in the estimation of the jury and give undue importance thereto.
2. Where the allegations of the petition are to the effect that the plaintiff has suffered from arsenic, administered by a servant girl who was mentally irresponsible, and who purchased the arsenic from the defendant, a druggist, to whom she was unknown, special *64charges which relate entirely to the right of the druggist to sell arsenic under varying but proper circumstances, are erroneous because of the emphasis thus given to facts which tend to establish one side of the case.
Smith, J.; Hosea, J., concurs; Peleger, J., concurs in part.
In the month of March, 1900, the plaintiff was a professional nurse of Dr. Ambrose, who had in his employ as a servant one Faitha Gilliam. The latter placed arsenic in the oatmeal served to the family, and the plaintiff having eaten of the oatmeal was made seriously ill and claims to have been permanently injured. She seeks to recover damages for said injuries from the druggist from whom Faitha Gilliam purchased the arsenic.
The case having been tried before a jury, a verdict was returned for the defendant. The plaintiff prosecutes error to the court to reverse the judgment, alleging various errors, of which we shall notice only the errors allege'd in the giving of the special charges requested by the defendant, to which the plaintiff excepted.
The contention of the plaintiff was that the defendant did not exercise such care as a person of ordinary prudence would exercise to learn whether Faitha Gilliam was a proper person to whom to sell arsenic. It is only necessary to refer to so much of the testimony as shows the prejudicial character of the charges complained of.
Faitha' Gilliam was a stranger to the druggist, except that he knew she was a servant of Dr. Ambrose. She was asked as to her purpose in purchasing the arsenic and stated that it was to be used for the purpose of billing rats. -There was evidence tending .to show'that under all the circumstances the sale should not have been made and the question whether it should have been made was properly submitted to the jury.
The following special charges were given over the exception of the plaintiff:
“7. It is not negligence for a druggist to sell a deadly poison to a stranger merely because the person who buys the poison is unknown to the druggist, if there is no other element of negligence.
*65“8. A druggist has a right to sell arsenic under the proper circumstances, and the sale of it does not become negligence merely because it is sold to a person who is unknown to the druggist.
“9. A druggist has a right to sell arsenic under proper circumstances, and a sale of it is not negligence merely because it is made to a female servant of nineteen or twenty years of age, who has the ordinary appearance of a servant and is bright and intelligent looking.-
“10. The sale of arsenic to an adult person of ordinary appearance who gives a satisfactory account of the person for whom and the purpose for which the arsenic is bought, is not in itself a negligent act. ’ ’
It will be observed that these charges single out an isolated fact or isolated facts upon which the plaintiff relies in proving the negligence of the defendant, and the jury is charged that such fact does not, or such facts do not, constitute negligence. This method of charging has been disapproved of by our Supreme Court as misleading. In Morgan v. State, 48 O. S., 377, the Supreme Court said:
“We assume it to be the law, while it is not, in this state, the duty of the trial judge to sum up the evidence to the jury, yet it is not improper to do so providing it is fairly done and all the material evidence on both sides is fairly presented. The judge should not single out isolated parts of the testimony, and instruct as to the law arising on the facts which such testimony tends to prove, nor give undue prominence to certain portions of it, and especially ought he not to review with emphasis only those facts which have a tendency to establish one side of the case. When one single fact is selected and strongly commented upon, the tendency is to distort its importance in the estimation of the jury, and to concentrate attention too intently upon it, to the undervaluing of the rest of the evidence. ’ ’
The same principle is declared in the C., C., C. & St. L. Ry. Co. v. Richerson, 19 C. C., 386, 6th syllabus, which is as follows:
“A charge that the railroad company was not guilty of negligence by leaving cars standing close to a crossing would not be proper where the leaving the cars standing close to the crossing was only one of the several things complained of, all of jvhich *66taken together are charged as negligence against the railroad company. ’ ’
For error in giving the special charges above set forth we think the case should be reversed. We do not find it necessary to express an opinion upon the other errors complained of by plaintiff in error.
Pfleger, J.
I dissent from the opinion so far as special charges 7, 8 and 9 are concerned. I agree in the error shown to exist in special charge 10 and in the result reversing the case, but mainly on the ground that the trial judge erred in his general charge in omitting common law duties and in practically limiting plaintiff’s right to recover to a case under the misdemeanor statute.
A defendant certainly has the right to demand the giving of a special charge that if one only of several elements necessary to establish a case of negligence has been made out, such element alone does not create a liability against' him. Special charges 7, 8 and 9 charging that the mere sale of a deadly poison to a stranger is not negligence in the case at bar if there is no other element of negligence present, are not misleading.
Morgan v. State, 48 O. S., 397, decided that it is error in a general charge to give undue prominence or single out isolated facts and charge thereon, as it tends to distort its importance in the estimation of the jury. This is undoubtedly true, where the court instructs affirmatively and of its own motion.
In Railroad Co. v. Richerson, 19 C. C., 373, it is held as properly refused special charges in which some act or item of conduct is selected and the court is requested'to charge that that alone would.not constitute negligence. The particular charge passed on in that case is not set out in the report. Possibly such charge was misleading in form.
The statute authorizing special charges must serve some purpose and is available for a defendant as well as a plaintiff. If a defendant is made liable only because more than one element of negligence must be proven, it would certainly impair his *67right to a full defense if he were prevented from arguing and having the jury charged that a failure to prove all such elements entitles him to a verdict. A special charge to that effect when not misleading should be allowed. I believe there was no error committed in the giving of charges 7, 8 and 9.
In the case last cited a special charge, that the defendant was .not negligent in leaving cars on its track was properly refused, because this assumes that it was no act of negligence whatsoever or at least might lead a jury into such a belief.
Charge 10 in this case would fall within that description. That a sale of arsenic to an adult person of ordinary appearance, giving a satisfactory account of the person for whom and the purpose for which the arsenic was bought, is not in itself a. negligent act, is incorrect, because in the first place it would be a negligent act under certain circumstances and, secondly, it might mislead the jury into the belief that such an act would not either of itself or in connection with other evidence tend in any degree to establish negligence.
With all deference to the judgment of my learned colleagues I find the errors in the general charge to be more serious. The petition sets out violation of the statute. It is sufficient to cover, a common law liability. The learned trial judge below appears to have confined the case entirely to a liability under Section 6957, Revised Statutes, which punishes as a misdemeanor the sale of arsenic in certain quantities and under certain restrictions and the sale of any poison to a minor or without being properly labeled and registered. A statutory law or an ordinance does not restrict common law liability. It may create an additional right or remedy. Our Supreme Court has said that statutory law (referring to this Section 6957) is proper to be submitted to the jury and is some evidence in considering the liability of the defendant. Davis v. Guarnieri, 45 O. S., 484.
The court below charged as follows:
“I announce to you first that a sale of arsenic or poison is not prohibited by the law. It is a legitimate act, it is a legitimate commodity. It may be sold and it may be purchased and no degree of blame can be attached either to the one or to the other, *68the seller or the buyer. The statute determines how poisons may be sold,” etc.
Galvin & Bauer, for plaintiff.
Edward M. Ballard, for defendant.
Nowhere is the common law duty defined.
The allegation in the petition concerns a sale made to a servant who was irresponsible mentally, and a total stranger to the defendant. The evidence shows that this servant worked for a physician; that she was refused the drug at the first inquiry, and that she had no written prescription or order and gave conflicting excuses. The concrete law as to the defendant’s liability under the peculiar circumstances in this ease was nowhere stated. This the defendant was entitled to have explained.
So the court below charged:
“If you find from the testimony that there was — examining all the duties that rest upon the defendant to exercise care and caution, scrutiny and observation, and if you find the absence of such care as that, if you should find that he failed in the exercise of these duties which I have shown to you are all that are expected of him, then you would be justified in fitiding a verdict for the defendant. ’ ’
This is probably a slip of the tongue or the pen, but its damaging effect is nowhere explained and it is part of the record before us. This charge is simply saying that if the defendant was guilty of negligence he is excused instead of being liable. This is without doubt prejudicial error. For the reasons given I think the judgment should be reversed.