SAMUEL THOMAS, JR. AND MARY ANN THOMAS, HIS WIFE,
Against HOSEA WINCHESTER.
RUGGLES, Chief Judge.
This action was brought to recover damages from the defendant for negligently putting up, labelling and selling as and for the extract of dandelion, which is a simple and harmless medicine, a jar of the extract of belladonna, which is a deadly poison; by means of which the plaintiff, Mary Ann Thomas, to whom, being sick, a dose of dandelion was prescribed by a physician, and a portion of the contents of the jar was administered as and for the extract of dandelion, was greatly injured, &c.
The facts proved were briefly these: Mrs. Thomas being in ill health, her physician prescribed for her a dose of dandelion. Her husband purchased what was believed to be the medicine prescribed, at the store of Dr. Foord, a physician and druggist in Cazenovia, Madison County, where the plaintiffs reside.
A small quantity of the medicine thus purchased, was administered to Mrs. Thomas, on whom it produced very alarming effects; such as coldness of the surface and extremities, feebleness of circulation, spasms of the muscles, giddiness of the head, dilation of the pupils of the eyes, and derangement of mind. She recovered, however, after some time, from its effects, although, for a short time, her life was thought to be in {322} great danger. The medicine administered was belladonna, and not dandelion.
The jar from which it was taken was labelled “½lb. Dandelion, prepared by A. Gilbert, No. 108 John Street, N. Y. Jar 8.02.” It was sold for, and delivered by Dr. Foord, to be the extract of dandelion as labelled. Dr. Foord purchased the article as the extract of dandelion, from James S. Aspinwall, a druggist at New York. Aspinwall bought it of the defendant as extract of dandelion, believing it to be such.
The defendant was engaged at No. 108 John Street, New York, in the manufacture and sale of certain vegetable extracts for medicinal purposes, and in the purchase and sale of others. The extracts manufactured by him were put up in jars for sale, and those which he purchased, were put up by him in like manner. The jars containing extracts manufactured by himself, and those containing extracts purchased by him from others, were labelled alike. Both were labelled like the jar in question, as “prepared by A. Gilbert.” Gilbert was a person employed by the defendant, at a salary, as an assistant in his business. The jars were labelled in Gilbert’s name because he had been previously engaged in the same business, on his own account, at No. 108 John Street, and probably because Gilbert’s labels rendered the articles more saleable. The extract contained in the jar sold to Aspinwall, and by him to Foord, was not manufactured by the defendant, but was purchased by him from another manufacturer or dealer. The extract of dandelion and the extract of belladonna resemble each other in color, consistence, smell and taste, but may, on careful examination, be distinguished, the one from the other, by those who are well acquainted with these articles. Gilbert’s labels were paid for by Winchester, and used in his business, with his knowledge and assent.
The defendant’s counsel moved for a nonsuit on the following grounds:—
1. That the action could not be sustained, as the defendant was the remote vender of the article in question, and there was {323} no connexion, transaction, or privity between him and the plaintiffs, or either of them.