[225 N. Y.]

Opinion, per CHASE, J.

[Jan.,

damages. The only exceptions taken by the defendants to their request to charge made at the close of the main charge other than those relating to punitive or vindictive damages hereinafter referred to, were taken in connection with other statements and charges by the court, all of which we quote as follows:

"Mr. Heffernan: I ask your Honor to charge that the defendants had a legal right to sell and offer for sale heroin between the first day of January, 1912, and the first day of July, 1914, without the direction or prescription of a physician on complying with the terms of the statute as to registering it and labeling it.

"The Court: I will charge the jury that at the time of the sales in question, if there were such sales, there was no statute of the state which prohibited the sale by these defendants of the drug known as heroin without a doctor's prescription and I also charge the jury that cases can arise where the sales are so excessive and made with such purpose that a civil action will lie for damages resulting from such sales, in which case the sales could not be termed rightful.

"Mr. Heffernan: The defendants except to your Honor's modification. I ask your Honor to charge the jury that in order to find a verdict for the plaintiff the jury must be satisfied from the evidence that the defendants sold heroin to Rooney knowing that Rooney was making an improper use of it and that its use was injuriously affecting his health.

"The Court: I so charge.

Mr. Heffernan: I ask your Honor to charge the jury that there is no evidence in this case upon which the jury can find that the defendant knew or had reason to know that Rooney's health was being injuriously affected by heroin.

"The Court: I decline to charge that on the ground that the defendant was a pharmacist and from his position

1919.]

Opinion, per CHASE, J.

[225 N. Y.]

as a pharmacist the jury might infer that he had knowledge of the drug heroin and of its consequences and also from the size of the doses claimed to have been sold.

"Mr. Heffernan: We except to your Honor's modification. I ask your Honor to charge that if the defendants between January 1st, 1912, and June, 1914, sold heroin in the ordinary course of business to Rooney or to others on their application, the defendants are not liable for the improper use of it made by the purchasers. "The Court: For improper use made by the purchasers?

"Mr. Heffernan: Yes.

"The Court: Refused.

"Mr. Heffernan: I except to that. I ask your Honor to charge that there is no evidence in this case that the defendants knew or had reason to know that Rooney was not using heroin in a proper or lawful manner.

The Court: I will refuse to charge that on the ground that there is proof in this case to the effect that the use of 500 tablets of heroin a week is not known for

medical purposes.

"Mr. Heffernan: I except to your Honor's statement. I ask your Honor to charge that there is no evidence in this case that the defendants wrongfully, unlawfully, or by acts or words requested, solicited or induced the plaintiff's son to enter their store or to purchase or use heroin.

"The Court: I charge that there is no evidence of active inducement of the son of the plaintiff to enter the store of the defendants and acquire the drug habit. Mr. Heffernan: Now I ask your Honor to charge that there can be no recovery by the plaintiff here unless the defendants or either of them requested, solicited, or induced Rooney to enter their store, for the purpose of selling or giving to him heroin.

"The Court: Refused.

[225 N. Y.]

66

Opinion, per CHASE, J.

[Jan.,

Mr. Heffernan: Except. I ask your Honor to charge that if the jury find that Rooney had become addicted to the use of heroin before he claims he made his first purchase from the defendants, then the jury's verdict must be no cause of action.

"The Court: I so charge.'

It will be seen from the above quotation that the defendants took but five exceptions. The first exception followed a charge by the court in accordance with the defendant's request in which the jury were told "that at the time of the sales in question, if there were such sales, there was no statute of the state which prohibited the sale by these defendants of the drug known as heroin without a doctor's prescription," but the court added: "Cases can arise where the sales are so excessive and made with such purpose that civil action will lie for damages resulting from such sales in which case the sales could not be termed rightful." It was not error to leave the jury to consider the purpose and extent of the sales. The purpose and extent of the sales were questions of fact. Heroin being a poison the purpose and extent of the sales were proper subjects of consideration in the action.

The second exception was after the court had charged at the defendants' request that the jury must be satisfied that the defendants sold heroin to plaintiff's son knowing that he was making an improper use of it and that the use was injuriously affecting his health and the defendants. had made a further request that the court charge the jury "That there is no evidence in this case upon which the jury can find that the defendant knew or had reason to know that Rooney's health was being injuriously affected by heroin." The modification by the court to which the exception was taken is in words as follows: "The defendant was a pharmacist and from his position as a pharmacist the jury might infer that he had knowledge

1919.]

Opinion, per CHASE, J.

[225 N. Y.]

of the drug heroin and of its consequences and also from the size of the doses claimed to have been sold." The defendants' knowledge of the drug heroin was established. The modification was not error.

The third exception was to the refusal of the court to charge "That if the defendants between January 1st, 1912, and June, 1914, sold heroin in the ordinary course of business to Rooney or to others on their application the defendants are not liable for the improper use of it by the purchasers." The charge so far as it relates to sales to others than Rooney was immaterial and the sale to Rooney could not be disassociated from the facts and circumstances affecting such sales. The court had charged that in order to find a verdict the jury must be satisfied that defendants sold the heroin to Rooney knowing that he was making an improper use of it and that its use was injuriously affecting his health.

The fourth exception was to the refusal of the court to charge the jury "that there is no evidence in this case that the defendants knew or had reason to know that Rooney was not using heroin in a proper or lawful manner." The court did charge in connection with such refusal that his refusal was "on the ground that there is proof in this case to the effect that the use of five hundred tablets of heroin a week is not known for medical purposes." This exception does not present a question of law.

The fifth exception was to the refusal to charge that "there can be no recovery by the plaintiff here unless the defendants or either of them requested, solicited or induced Rooney to enter their store for the purpose of selling or giving to him heroin."

The court refused to charge as requested after saying: "I charge that there is no evidence of active inducement of the son of the plaintiff to enter the store of the defendant and acquire the drug habit."

[225 N. Y.]

Opinion, per CHASE, J.

[Jan.,

The questions raised by exceptions as we have shown are few. In considering them they must be read with all that was said by the court in connection therewith and with the facts necessarily found by the jury. As so read no question of controlling importance is presented.

The right of a parent to recover for loss of services of a child has long been recognized at common law. (Maxson v. D., L. & W. R. R. Co., 112 N. Y. 559; Lawyer v. Fritcher, 130 N. Y. 239; King v. Viscoloid Co., 219 Mass. 420; Cowden v. Wright, 24 Wend. 429.)

Such an action is sustained when the loss of services has been caused by an assault and battery (Cowden v. Wright, supra); indecent assault (Whitney v. Hitchcock, 4 Den. 461); negligence (Maxson v. D., L. & W. R. R. Co., supra; Cuming v. Brooklyn City R. R. Co., 109 N. Y. 95); abduction (Lawyer v. Fritcher, supra), or other tort by which the parent's right to the services of the child is taken away in whole or in part. When the child's father is dead the mother can maintain the action. (Gray v. Durland, 51 N. Y. 424.)

It is an established general rule of law that where a parent sues for loss of services arising from an injury received by his infant child, damages will not be permitted if the evidence shows that the child's negligence was the efficient cause of the injury. (Kennard v. Burton, 25 Me. 39; Honegsberger v. Second Ave. R. R. Co., 2 Abb. Ct. App. Dec. 378; Dennis v. Clark, 56 Mass. 347, 354; Kerr v. Forgue, 54 Ill. 482; Moore v. Pennsylvania R. R. Co., 99 Penn. St. 301; Chicago, B. & Q. R. Co. v. Honey, 63 Fed. Rep. 39; Ainley v. Manhattan Ry. Co., 47 Hun, 206.)

It is an equally well-established rule of law that if the conduct of the defendant in such a case was so deliberate, persistent and intentional as to be equivalent in law to positive and willful injury the contributory negligence of the child is not a defense. (Chapman v. New Haven R. R. Co., 19 N. Y. 341.) Unless the evidence is without