New York Journal of Pharmacy, Volume 1 (of 3), 1852 / Published by Authority of the College of Pharmacy of the City of New York.

by College of Pharmacy of the City of New York

2. That this action sought to charge the defendant with the consequences of the negligence of Aspinwall and Foord.

3. That the plaintiffs were liable to, and chargeable with the negligence of Aspinwall and Foord, and therefore could not maintain this action.

4. That according to the testimony Foord was chargeable with negligence, and that the plaintiffs therefore could not sustain this suit against the defendant; if they could sustain a suit at all, it would be against Foord only.

5. That this suit, being brought for the benefit of the wife, and alleging her as the meritorious cause of action, cannot be sustained.

6. That there was not sufficient evidence of negligence in the defendant to go to the jury.

The Judge overruled the motion for a nonsuit, and the defendant’s counsel excepted.

The Judge, among other things, charged the jury that if they should find from the evidence that either Aspinwall or Foord were guilty of negligence in vending as and for dandelion the extract taken by Mrs. Thomas, or that the plaintiff Thomas, or those who administered it to Mrs. Thomas, were chargeable with negligence in administering it, the plaintiffs were not entitled to recover; but if they were free from negligence, and if the defendant Winchester was guilty of negligence in putting up and vending the extracts in question, the plaintiffs were entitled to recover, provided the extract administered to Mrs. Thomas was the same which was put up by the defendant and sold by him to Aspinwall, and by Aspinwall to Foord.

That if they should find the defendant liable, the plaintiffs in this action were entitled to recover damages only for the personal injury and suffering of the wife, and not for loss of service, medical treatment, or expense to the husband, and that the recovery should be confined to the actual damages suffered by the wife. {324}

The action was properly brought in the name of the husband and wife, for the personal injury and suffering of the wife, and the case was left to the jury, with the proper directions on that point. 1 Chitty on Pleadings. 62 ed. of 1828.

The case depends on the first point taken by the defendant on his motion for a nonsuit; and the question is whether the defendant, being a remote vender of the medicine, and there being no privity or connexion between him and the plaintiffs, the action can be maintained.