W. T. Rawleigh Co. v. Johnson

The opinion of the Court was directed by

This is an appeal from a directed verdict in favor of the plaintiff by his Honor, Judge J. M. Nickles.

There are four exceptions. Exception 4 is:

“That the presiding Judge erred in directing a verdict and refusing to submit the case to the jury because (a) the pleadings made the issue and there was testimony that the goods furnished Johnson by plaintiff were intoxicating beverages, which could not lawfully be sold or collected for in South Carolina; (b) there was testimony that Johnson had become a salesman for the plaintiff, and was working under its directions and instructions at least part of the time after the date of alleged contract; and (c) the pleadings raised the issue, and there was testimony as to fraud on the part of the *320 plaintiff’s agent in securing the signatures of the defendants to the aforesaid alleged contract.”

This- exception is sustained on that part which complains :

“The pleadings made the issue and there was testimony that the goods furnished Johnson were intoxicating beverages, which could not be lawfully sold or collected for in South Carolina.”

I/. B. Johnson’s affidavit was admitted in evidence. Part of it is:

“It was represented to me that the extract contained no alcohol, when in fact it contained .70 to1 90 per cent. After selling the goods for awhile I found that the people were becoming intoxicated and using it as a beverage.”

McDaniel, Kirby, Howell, and Burgess testified that the extract had the effect of alcohol. This was sufficient to carry • the case to the jury, on this issue.

There must be a new trial, and the other exceptions are unnecessary to be considered.

• Judgment reversed, and a new trial granted.

(concurring in result) : I think that his Honor, the Special Judge, was in error in directing a verdict for the plaintiff, in disregard of the evidence offered by the defendants that the guaranty was signed under •the apprehension, induced by the misrepresentation of the plaintiff’s agent, that it was nothing more than a recommendation of the party Johnson, who was dealing with the plaintiff, and whose conduct the paper as it stands, purports to guaranty. See Colt Co. v. Britt, 129 S. C., 226; 123 S. E., 845.

I do not agree that the evidence shows that the goods which the plaintiff shipped to Johnson under contract, per se were under the ban of the South Carolina statute against intoxicating liquor, simply upon proof that the goods were *321 in liquid form, were used by some customers as a beverage, and produced intoxication. If that be the test, scores of medicines and extracts, Jamaica ginger, camphor, bay rum, and even shoe polish are under the ban. The test is the conditions named in Section 888 of the Criminal Code, whether the alcohol in the compound or preparation “is in a greater quantity than is necessary for the purpose of extraction, solution or preservation of such preparation,” and whether the compound or preparation was for medicinal use. Otherwise every druggist in the State would be a violator of the law, and subject to conviction upon proof' that, notwithstanding the fact that the compound did not impinge upon Section 888, and was intended for medicinal use, confirmed inebriates used it as a beverage to induce intoxication.