Norton v. Sewall.

NORTON, adm'rx, plaintiff, v. SEWALL.

(106 Mass. 143.)

Death caused by apothecary's negligence.

Defendant, an apothecary, by his servant, negligently sold, as and for tincture of rhubarb, two ounces of laudanum to P., who procured it for the purpose of administering it, and who did administer it, as a medicine to his servant, the plaintiff's intestate, from the effects of which he died. Held, that defendant was liable in damages to plaintiff, the administratrix. (See note, p. 299.)

ACTION by an administratrix to recover damages for causing the death of her husband. The opinion states the case. The verdict was for plaintiff in the sum of $450. Defendant alleged exceptions.

C. Sewall, for defendant.

J. M. Keith, for plaintiff.

GRAY, J. Upon the allegations in the declaration, and the statements in the bill of exceptions, the jury must be taken to have found that the defendant, an apothecary, by his servant, negligently sold, as and for tincture of rhubarb (a well-known and harmless medicine), two ounces of laudanum, a dangerous and deadly poison, to Patten, who procured it for the purpose of administering it, and did administer one ounce of it, as a medicine, to his servant, the plaintiff's intestate, from the effects of which he died. This finding includes a violation of duty on the part of the defendant, and an injury resulting therefrom to the intestate, for which the defendant was responsible, without regard to the question of privity of contract between them. The case is within that of Thomas v. Winchester, 2 Seld. 397, which has often been recognized and approved by this court. Davidson v. Nichols, 11 Allen, 514, 519; McDonald v. Snelling, 14 id. 290, 295; Wellington v. Downer Kerosene Oil Co., 104 Mass. 64.

By the statutes of the commonwealth, "actions of tort for assault, battery, imprisonment, or other damage to the person," survive, and may be prosecuted by the executor or administrator of the party

Norton v. Sewall.

injured. Gen. Stats., ch. 127, § 1; ch. 128, § 1. The words "damage to the person," as here used, do not, indeed, extend to torts not directly affecting the person, but only the feelings or reputation, such as breach of promise, slander, or malicious prosecution. Smith v. Sherman, 4 Cush. 408; Nettleton v. Dinehart, 5 id. 543. But they do include every action, the substantial cause of which is a bodily injury, or, in the words of Chief Justice SHAW, in 4 Cush. 413, "damage of a physical character;" whether the connection between the cause and the effect is so close as to support an action of trespass, or so indirect as to require an action on the case at common law. Hollenbeck v. Berkshire Railroad Co., 9 Cush. 478; Demond v. Boston, 7 Gray, 544.

In Cutting v. Tower, 14 Gray, 183, cited for the defendant, the action which was held not to come within the Rev. Stats. ch. 93, § 7, declaring that actions for damage done to real and personal estate should survive, was an action for deceit in selling poisoned meal, and the death of the buyer's horses from eating it, was alleged incidentally and by way of aggravation only. It was of such an action, the gist of which was the fraud and deceit, that Mr. Justice BIGELow was speaking, when he remarked in that case that, if the meal had been made into bread for the buyer's family, and thereby occasioned them sickness and suffering, an action would not have survived for an injury to the person. But in the case at bar, the principal, indeed the only, ground of action is the injury caused to the body of the intestate by the defendant's act.

Exceptions overruled.

NOTE.-See Loop v. Litchfield, 1 Am. R. 543, wherein the case of Thomas v. Winchester, 6 N. Y. 397-the leading case on the above subject — is explained and distinguished. In Kentucky, druggists have been held absolutely liable, notwithstanding any degree of care they may have used, for injuries happening through the mixture of poisons with ordinary drugs. Fleet v. Hollenkemp, 13 B. Monr. 219. - REP.

Connolly v. Warren.

CONNOLLY, plaintiff, v. WARREN et al.

(106 Mass. 146.)

Common carrier—what constitutes baggage.

A feather bed, not intended for use on the voyage, is not "personal baggage * of a female passenger by steamship from Ireland to the United States. (See note, p. 302.)

ACTION to recover the value of a feather bed, alleged to have been lost by the negligence of the defendants, common carriers, on whose steamship plaintiff was a passenger from Queenstown, Ireland, to Boston, Mass. It appeared that the plaintiff took no property with her for the voyage, beside the feather bed, a pillow, and the clothing she wore; and that she did not intend to use the feather bed on the voyage. She contended that it was a question for the jury, whether the feather bed was personal baggage, incidental to her own transportation. The judge, before whom the case was tried, was not of this opinion; but, with the consent of the parties, directed a verdict for the plaintiff, in order that the opinion of this court might be obtained. In his report of the case, the judge stated that, "if the defendants were bound, under the circumstances, to carry the bed without any payment, beyond what was paid as the price of the ticket, judgment to be rendered on the verdict for the plaintiff; if the question whether the bed was a part of the plaintiff's personal baggage is, under the facts before recited, a question of fact for the jury, the verdict to be set aside, and a new trial ordered; but if, as matter of law, under the circumstances, the defendants were not bound to carry the bed unless paid for its carriage something beyond the price which had been paid for the ticket, the verdict to be set aside, and judgment entered for the defendants.”

J. D. Ball, for defendants.

H. N. Sheldon, for plaintiff. It was a question for the jury, and not for the court, whether the bed was personal baggage of the passenger. Ouimit v. Henshaw, 35 Verm. 605. And, in determining it, the jury should consider her social rank and the nature of her journey. Nevins v. Bay State Steamboat Co., 4 Bosw. 225;

Connolly v. Warren.

Duffy v. Thompson, 4 E. D. Smith, 178. Baggage includes every thing appropriate for the personal use of the passenger, unless, in fact, designed for some other purpose. Brooke v. Pickwick, 4 Bing. 218; McGill v. Rowand, 3 Penn. St. 451; McCormick v. Hudson River Railroad Co., 4 E. D. Smith, 181; Davis v. Cayuga and Susquehanna Railroad Co., 10 How. 330; Jones v. Voorhees, 10 Ohio, 145; Johnson v. Stone, 11 Humph. 419; Illinois Central Railroad Co. v. Copeland, 24 Ill. 332; Walsh v. Steamboat H. M. Wright, Newb. 494; Jordan v. Fall River Railroad Co., 5 Cush. 69; Stimson v. Connecticut River Railroad Co., 98 Mass. 83; Dunlap v. International Steamboat Co., id. 371.

MORTON, J. The only contract which the plaintiff had with the defendants was a personal contract for her safe transportation from Queenstown to Boston, to which the carriage of suitable personal baggage was incidental. The facts stated in the report exclude the theory that the defendants were under any liability for the transportation of the bed in question as merchandise. The only question in the case is, whether the jury would be justified in finding that the feather bed was personal baggage, for the loss of which the defendants are liable, under their contract for the safe transportation of the plaintiff.

In Jordan v. Fall River Railroad Co., 5 Cush. 69, the rule is stated to be, "that baggage includes such articles as are of necessity, or convenience, for personal use, and such as it is usual for persons traveling to take with them." In Collins v. Boston and Maine Railroad Co., 10 Cush. 506, the term "baggage" was held not to include articles of merchandise intended for sale, and not for personal use. In Dunlap v. International Steamboat Co., 98 Mass. 371, it was held not to include money, carried in a valise, beyond a sum sufficient for the reasonable traveling expenses of the traveler.

In the case at bar, we are of opinion that the feather bed was not a part of the personal baggage of the plaintiff, and that the defendants are not liable for it under their contract. The case finds that it was not intended for personal use during the voyage. It was an article of furniture, and it is difficult to see how it can any more properly be called personal baggage, than any other article of household furniture. The presiding judge correctly ruled that, upon the facts proved, this was a question of law. It follows that, according

Connolly v. Warren.

to the terms of the report, the verdict must be set aside, and judg ment entered for the defendants.

Judgment for the defendants.

NOTE. - In a recent case in New York, the rule was laid down to be, that "carriers of passengers are responsible for the carriage and safe delivery of such baggage as, by custom and usage, is ordinarily carried by travelers, and that the payment of usua fare includes, in contemplation of law, a compensation for the conveyance of such baggage." E. D. SMITH, J., in Dexter v. Syracuse, Binghamton and New York Railroad Company, 1 Am. R. 527 (42 N. Y. 326); see, also, Edwards on Bailment, 580; Story on Bailments, 499; Powell v. Meyers, 26 Wend. 591; Merrill v. Grinnell, 30 N. Y. 594; Macrow v. Great Western Railroad Company, L. R., 6 Q. B. 612. But the principal question has been, what constitutes "personal luggage," or "ordinary baggage," in the rule of liability laid down? In England, there is an act of parliament styled the Carriers' Act (1 Wm. IV, ch. 88), which makes it the duty of railway companies, etc., to carry a certain quantity of luggage, but in terms limiting it to “ordinary luggage." This very ambiguous phrase, corresponding to what may be regarded as the common-law phrase "ordinary baggage," in America, has been the subject of legal interpretation in at least half a dozen well-considered and elaborately argued cases in the higher courts of England. In Cahill v. The London and North Western Railroad Company, 13 Q. B. N. S. 818, it appeared that a passenger presented to the company, as luggage, a box containing only merchandise, but not exceeding in weight the limit prescribed for personal luggage. No information was given to the company of the contents of the box. Held, that he could not recover for the loss of the box. Chief Justice COCKBURN, in this case, said: "If a railway company * choose to take, as ordinary luggage, that which they know to be merchandise, I quite agree that it is not competent for them, in the event of a loss, to claim exemption from liability on the ground that the article consists of merchandise, and not of ordinary luggage. But, on the other, if a passenger, who knows or ought to know that he is only entitled to have his ordinary personal luggage carried free of charge, chooses to carry with him merchandise, for which the company are entitled to make a charge, he cannot claim to be compensated in respect of any loss or injury by the company to whom he has abstained from giving notice of the contents." And the same doctrine was enunciated by PARK, Baron, in The Great Northern Railway Company v. Shepherd, 8 Exch. 30.

In this latter case, the passenger presented to the carrier for transportation as luggage a carpet bag, a deal box about two feet long, and two brown paper parcels wrapped in a blue checked handkerchief. The carpet bag contained some books and two handkerchiefs - the bag and these articles being valued at £1 3s. 6d. The bag also contained ivory handles, as did also the box and parcels, to the number of two hundred and eighty-three dozen. Held, that the passenger could recover for the loss of the bag, the books and the handkerchief, but not for the loss of the handles, the carrier not being informed of the fact that these articles of merchandise were contained in the luggage presented for carriage.

In Phelps v. The London and Western Railway Co., 19 C. B. N. S. 321, it was held, that the term "ordinary luggage" does not include title deeds belonging to a client which an attorney is carrying with him in his bag or portmanteau, for the purpose of producing on a trial in a court of justice; nor bank notes (to a considerable amount) carried by him for the purpose of meeting the contingencies of the suit. ERLE, C. J., In this case, said: "It is agreed, on all hands, that it is impossible to draw any very well-defined line as to what is and what is not necessary or ordinary luggage for a traveler; that which one traveler would consider indispensable, would be deemed superfluous and unnecessary by another. But the general habits and wants of manFind must be taken to be in the mind of the carrier when he receives a passenger for Conveyance."

In Belfast and Ballymena Railway Co., etc., v. Keys, 9 H. L. 556, it appeared that the passenger took with him into the car of the company a traveling case of the valu £, containing watches of the value of £1,895. In the course of the journey, a gd