Swain v. . Schieffelin , 134 N.Y. 471 ( 1892 )

The jury found that the plaintiff's product of ice cream, etc., which became useless by reason of its infection with the compound purchased of the defendants and was destroyed, had the value of fifty dollars. To that extent the damages sustained clearly came within the rule of relief. But the plaintiff claims further that he was injured in his business by this act of the defendants. And the evidence in its support was that of his average monthly receipts for the year ending in March, 1889, and those for the three months following that time. This basis of estimate was somewhat speculative or uncertain, as there may within that period of three months have been some other causes for a less average of monthly receipts during such time than for the entire year preceding. But as no exception was taken to the charge as made by the court, or to its refusal to charge on the subject of damages, other than such as went to the right of the plaintiff to recover anything, the question whether the plaintiff should be allowed to recover special damages for injury to his business, was not specifically or necessarily raised after the close of the evidence. Nor is the exception taken to the denial of the motion to reduce the damages awarded by the verdict available on this review. (Oldfield v. N.Y. H.R.R. Co.,14 N.Y. 310; Standard Oil Co. v. Amazon Ins. Co., 79 id. 506.) The only question here in that respect arises upon the exception taken to the reception of the evidence on the subject of the average monthly receipts, before referred to, of the plaintiff's business. And the admissibility or the inadmissibility of that evidence is dependent upon the question whether or not the plaintiff's loss occasioned by injury to his business may be deemed a proper element of damages. It may be if there was no intermediate efficient cause to which the injury may have been imputed. In such case the result usually may be attributed to the primary as the proximate cause. Such was the case of the lighted squib thrown by the party charged into a crowd of people, and then for self-protection thrown by one after another until it injured the party who recovered damages for the injury (Scott v. Sheppad, 2 W. Bl. 892; 3 Wilson, 403), and where the boy in escaping the threatened attack of the party pursuing him ran against and knocked out the faucet of a cask of wine, the pursuing party was held liable for the loss. (Vandenbergh v.Truax, 4 Denio, 464.) The injurious results which may or ought to be foreseen of a wrongful or negligent act, are also deemed the proximate consequences of it. This was illustrated in the familiar case of the person in the balloon descending into the garden under circumstances which invited people to go to his assistance, and in doing so trampled the vegetables, etc., for which he was held liable. (Guille v.Swan, 19 John. 331.) In those cases and others similar in principle the damages suffered were deemed the proximate result of the wrongful or negligent acts of the parties charged.

In the present case, so far as the plaintiff's property was injuriously affected or contaminated by the use of the compound sold him by the defendants, the damages were attributable directly to the act complained of, and to that extent he was properly permitted to recover. (Jeffrey v. Bigelow, 13 Wendell, 518; Mullett v. Mason, L.R. [1 C.P.] 559.) Beyond that the damages claimed for injury to business and for loss of profits which the plaintiff may otherwise have realized from his trade were special and consequential. The question is whether they were the natural and proximate result of the act chargeable to the defendants. In Crain v. Petrie (6 Hill, 522) the defendant was charged with fraudulently selling diseased sheep to the plaintiff, who was engaged in the butchering business and selling mutton. The plaintiff there gave evidence, subject to exception, that one Gage, who had agreed to take mutton from him, also other customers of the plaintiff, declined to do so in consequence of the report that he had purchased the diseased sheep. The court, on review, held that the reception of the evidence was error; that so far as related to the refusal of Gage to take mutton it was a breach of contract, for which the plaintiff had his remedy against him; and that the discontinuance of purchases by others "resulted from a want of confidence in the care, skill or integrity of the plaintiff himself, the people assuming that he might sell the meat of diseased sheep for a good and merchantable article." And Ch. Justice NELSON there said: "The consequential loss which the plaintiff was allowed to prove at the trial was too remote and speculative to come within any established rule on the subject;" and that "to maintain a claim for special damages this must appear to be the legal and natural consequences arising from the tort and not from the wrongful act of a third party remotely induced thereby. In other words the damages must proceed wholly and exclusively from the injury complained of."

The proposition there, in its relation to the claim founded upon the refusal of Gage to take mutton as he had agreed, is clearly distinguishable in principle from that in the case at bar. The refusal of Gage was a violation of his contract, and it might be treated as the efficient and immediate cause of the damages so occasioned to the plaintiff within the doctrine that when the original wrong is rendered injurious by reason only of the intervention of some independent wrongful act of another, the latter will be treated as the proximate cause of the injury, which will be imputed to it alone. (Hoey v. Felton, 11 C.B. [N.S.] 142; Vicars v. Wilcocks, 8 East. 1; Ward v. Weeks, 7 Bing. 211; Terwilliger v. Wands, 17 N.Y. 54; Lowery v.W.U.T. Co., 60 id. 198.) This rule was not applicable to his other customers, who, for like reason, had ceased to buy his meat. And apparently there is no distinction in principle between the Crain case in that respect and the present one so far as relates to the claim for special damages resulting from the loss or reduction of the business of the plaintiff. And, therefore, by giving controlling application to this case of the views of Ch. Justice NELSON as broadly as expressed in Crain v. Petrie, the consequential injury to the plaintiff's business might not be treated as imputed to the act of the defendants as the legal or proximate cause, but would be deemed attributable in that sense to the want of confidence in the care, skill or integrity of the plaintiff. As has already been observed, there may be in the causation a succession of dependent acts or events through which may be traced the primary as the proximate cause of the resulting injury; and when injurious consequences which proceed from a wrongful or negligent act may, or ought to have been foreseen, the author of it is responsible. A dealer in food products who is known to use deleterious substances in their production cannot expect much patronage in that line of trade. And it could with ordinary forecast be foreseen that the supply to him of poisonous compounds to use for such purpose would, if made public, be materially prejudicial to his business. The publicity of the fact of the purchase by him of poisons to be so used would have an effect in that direction similar to that of the report of his use of them for such purpose, and differing, if at all, in degree only.

In the present case the published imputation that the plaintiff had sold poisonous ice cream seems to have been justified by the fact. And the compound by which his product was so infected, was innocently used by the plaintiff upon the faith of the defendants' representation that it was wholesome. The disposition made of the Crain case was not dependent upon the exception to evidence offered to prove that the customers, other than Gage, had ceased to deal with Petrie. It could rest upon the proposition that the violation by Gage of his contract was the only cause to which the damages resulting from his refusal to take mutton, were legally imputable, and for which he alone was liable to Petrie, the plaintiff in that action at the trial, and defendant in error on the review. And in view of the legal principles to which advertence has been made, the Crain case may properly and should be limited to that proposition in its application to the present one. There was here no intermediate wrongful or negligent act to which the consequential injury to the plaintiff or the special damages sustained by him can be imputed. In view of the facts as found by the jury in respect to the nature of the compound, those damages followed according to the ordinary course of events from the cause complained of, and may be deemed the legitimate sequence of it.

The judgment should be affirmed.

PARKER, BROWN and LANDON, JJ., concur with FOLLETT, Ch. J.; VANN and HAIGHT, JJ., concur with BRADLEY, J.

Judgment affirmed.