Thomas v. Winchester

6 N.Y. 397 (1852)

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Nature of the Case

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Facts

D accidentally took a jar of belladonna and labeled it and sold it as extract of dandelion, which is a simple and harmless medicine. The extract of belladonna is a deadly poison. P's physician prescribed for her a dose of dandelion. P's husband bought the medicine prescribed, at the store of Dr. Foord, a physician and druggist in Cazenovia, Madison County. A small quantity was administered to P, 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. The medicine administered was belladonna and not dandelion. The jar from which it was taken was labeled '1/2 lb. dandelion, prepared 'by A. Gilbert, No. 108, John-street, N. Y. Jar 8 oz.' It was sold for and believed by Dr. Foord to be the extract of dandelion as labeled. Foord purchased the article as the extract of dandelion from Jas. S. Aspinwall, a druggist at New-York. Aspinwall bought it from D as extract of dandelion, believing it to be such. The extract contained in the jar sold to Aspinwall, and by him to Foord, was not manufactured by D but was purchased by him from another manufacturer or dealer. The extract of dandelion and the extract of belladonna resemble each other in color, consistency, smell, and taste; but may on careful examination be distinguished the one from the other by those who are well acquainted with these articles. P sued D. P alleged that the whole injury was occasioned by the negligence and unskillfulness of D in putting up and falsely labeling the jar of belladonna as the extract of dandelion, whereby the plaintiffs, as well as the druggists, and all other persons through whose hands it passed before being administered as aforesaid, were induced to believe, and did believe that it contained the extract of dandelion. D moved for a nonsuit.