The circuit court failed to present the theory of the defense, so far as it is based upon the claim that plaintiff was trespassing upon the property of defendants when he took the poison. There is a satisfactory answer to this objection, based upon this ground: In my opinion, there is no evidence whatever tending to support *Page 714 the allegation of defendant's answer to the effect that defendant was a trespasser, or guilty of wrong in taking the poison. The plaintiff, in his evidence, declares that he took it upon the explicit direction of defendants. The defendant who had the transaction with plaintiff testifies, substantially, that plaintiff came to defendants' store and asked for dandelion. After some conversation as to price and quantity of the drug desired by plaintiff, the defendant proceeded to put upbelladonna instead of dandelion. While the poison was being put up, plaintiff took from the jar, whence defendant had taken the drug, a dose. No assent thereto was given by defendant, nor did he object. He testifies that he saw plaintiff taking the drug from the jar, and that nothing was said by either party. Surely it cannot be said that plaintiff, according to defendant's own testimony, was guilty of a trespass, or what the law would consider a wrong. The defendants kept the drug for sale. Plaintiff served himself instead of asking defendants to serve him, and took the identical drug which defendants had indicated to be the medicine he wanted. But it is said that he took what he had not purchased. This is not correct. He had bargained for a specified quantity, and while that was being put up took a small quantity in addition thereto. Here clearly arose an implied promise to pay for what he took, if it was worth anything. The transaction was in fact, a sale of the dose taken by plaintiff.
It cannot be claimed that upon the facts of the case defendants could have sustained an action against plaintiff for a trespass, or for wrongfully taking, or could have successfully prosecuted him for a theft. Such proceedings, if attempted, would not have been successful, and no greater success ought to attend defendants' endeavor to escape liability for their negligence on the ground of the trespass or wrong of plaintiff in serving himself to a poison which defendants had indicated to be the medicine which he desired to take. It may not be a usual thing for the patrons of a drug-store, or *Page 715 of a mercantile establishment, to "help themselves" to drugs or goods. But I am quite sure that the transaction, as disclosed by the evidence of defendant and the undisputed facts of the case, was not and cannot be considered a trespass or wrong upon the part of the plaintiff. It is not disputed that the plaintiff and defendants lived in the same village, and were acquaintances of more or less intimacy, and that plaintiff had before made purchase of defendants of dandelion, and that the act of plaintiff was not at the time treated by defendants as an unusual or improper thing. The most that can be said of it is that plaintiff's acts exhibited a degree of familiarity which is not uncommon among acquaintances.
I reach the conclusion that, as there was an utter absence of evidence to support the defense based upon plaintiff's "trespass," or wrong, the circuit court did not err in failing to present the issues involved therein to the jury, or to instruct them thereon. These views sufficiently answer all that is said in the opinion of the majority in regard to the trespass and wrong of plaintiff, in which I cannot concur.
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