Page:The Green Bag (1889–1914), Volume 09.pdf/313

 282

TJie Green Bag.

willfully joins with a married woman in doing an act which deprives her husband of her services and of her companion ship is liable to the husband in damages (or his conduct. And the defendants owed the plaintiff the legal duty not to sell to his wife opium in the form of large quantities of laudanum as a beverage, knowing that she was, by using them, destroying her mind and body, and thereby causing loss to the husband. The defendants and the wife joined in doing acts injurious to the rights of the husband. From the facts stated in the complaint, the defendants were just as responsible as if they had forced her to take the drug, for they had their part in forming the habit in her, and continued the sale of it to her after she had no power to control herself and resist the thirst; and that, too, after the repeated warnings and protests of the husband. There is no difference between the principle involved in this action and the principle upon which a husband can recover from a third person damages for assault and battery upon his wife. That assaults and batteries are made criminal offenses makes no difference, the foundation of the husband's suit being, not for the public offense, but for damages, — com pensation for the injury which he has sustained on account of the loss of his wife's services. The sale of the laudanum by the defendants to the plaintiffs wife, under the circum stances set out in the complaint, was willful and unlawful, and the husband's injury is just as great as if his wife had been disabled from a battery committed on her, although the unlawful act is not indictable. "The defendant's counsel also insisted that the selling of laudanum is a lawful business, that it is on the same footing as the sale of spirituous liquors unrestrained by the statute. It is true that there is no statutory provision in North Carolina prohibiting the sale of laudanum as a bev erage or as a medicine, but it does not therefore follow that a sale of it under all circumstances is lawful. As is well said in Hoard v. Peck, 56 Barb.; ' Its lawfulness or unlawfulness depends upon the circumstances of the sale, and the uses and purposes to which it is to be applied.' It is lawful to sell laudanum as a medicine. It is also lawful to sell spirituous liquors as a beverage upon the dealer's complying with the license laws, except in the cases prohibited by statute. Cer tainly no fair inference can be drawn from this that dam ages may not be recovered from one who knowingly and willfully sells or gives laudanum or intoxicating liquors to a wife, in such quantities as to be attended by such conse quences to the wife as are set out in the complaint in this action. Hut laudanum is well known to be a poisonous drug. As a beverage, it cannot be drunk without injury to the body, affecting the health of the physical and moral powers, and this is known to most persons of ordinary in telligence and to all druggists. The defendants knew, tak ing the complaint in this appeal to be true, that the plain tiffs wife did not buy the laudanum for medicine. They knew that she was buying it as a beverage; that she was violating her duty to her husband in destroying her health, and thereby rendering herself unlit as a companion for him, and to render proper service in the household. They assisted her and encouraged her, for gain, with the means of doing all this in face of his protests and warnings. The habit she had formed was the direct result of the use of the drug, which the defendants sold to her in such large quantities,

and they k*new it, and persisted in it, although repeatedly warned and entreated by the husband not to do so. His honor erred in sustaining the demurrer. It ought to have been overruled."

We think it is correctly remarked by the editor of the L. R. A. in connection with this decision : "To avoid the maxim Valentinen fit injuria the de cision must rest upon the fact that she had become incapable of rational action in the matter, so that the injury to her is like an injury to property or to a per son non compos mentis." But that leaves the question of injury to the husband unanswered. It may be plausibly argued that the principle involved is similar to that in cases of seduction or enticing away another's servant, in which the willingness of the seduced or of the servant is no defense. In the New York case one judge dissented, observing : " The plaintiff's wife was responsible to no human tribunal for her conduct." "The wrong in this case, if it could be regarded as a legal wrong, was committed by the wife of the plaintiff, and not by the defendant." We are by no means cer tain that the case is as clear against the plaintiff as we thought it, many years ago, when we wrote of it : — "Next we shall come down on them for selling our wives patent medicines and female specifics. The corset-maker shall suffer, and the shoemaker who puts small heels on our wives' boots. In those States where lotteries are lawful, let the lottery dealers beware of selling too many tickets to married women. I am by no means certain that the doc trine may not be reasonably invoked against revival preachers, who drive weak women mad by powerful dis courses, and against the advocates of woman's rights, who alienate our wives' affections from us by holding up the glittering prospect of the ballot."

DETENTION OF WITNESSES. — Solomon said : "There is nothing new under the sun"; and the old hymn says : " To Thee there's nothing old appears, Great God, there's nothing new." It is the same to a considerable extent in the law, so far as principles are concerned. Legal novelty chiefly consists in applying the old principles to new conditions. So doubtless the decision in Hull v. County Commis sioners, 82 Md. 618; 51 Am. St. Ref. 484, that a witness confined in prison by the government, to secure his attendance, simply because of his inability to procure security for his attendance, may recover his per diem fee for attendance for every dav of his confinement, will strike most practitioners as novel, although perfectly right. But it seems to be old law, for the Courts cite precise precedents from the Federal Circuit Court and those of Michigan, Missouri and Iowa. Of course this doctrine would not apply to those States which refuse witness fees in criminal cases.