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 1, 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.

I

"Mr. Heffernan: I except to your Honor's statement. 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 hereoin.

"The Court: Refused.

"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 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 1, 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."

The question 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. 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 conflict it is always for the jury to determine whether the facts in a given case bring it within one rule or the other.

The question distinctly arises in this case whether the plaintiff is entitled to recover punitive or vindictive damages against the defendants. The court charged the jury that if they found the defendants "With evil heart desiring to ruin this boy or not

caring at all whether they ruined him or not, knowing that surely he was acquiring this habit, that his life would be more or less affected thereby and that he would eventually become a useless citizen," and permitted "the sale of this poison to make money out of the miseries of this boy and did it from a reckless disregard of any duty towards any human being and out of desire to injure, in such case and no other can you consider the question of so-called punitive or vindictive damages."

The defendants excepted to the charge and the court directed the jury that in case they found a verdict for the plaintiff they should find separately as to the compensatory damages and as to the punitive damages. At the close of the charge the defendants asked the court to charge "That there is no evidence in this case upon which they may predicate or make an award of punitive damages." The court declined to make this charge and the defendants took an exception.

The common-law action which a master or parent has for loss of the services of a servant or minor child is based upon an injury to a property right. Compensation is allowed for loss of services to which the master or parent is entitled and for the expenses incurred by reason of such injury. Much has been written by the courts and by text writers upon the question whether punitive, vindictive, exemplary, aggravated, or retributory damages should be allowed in any case without reaching a generally accepted conclusion. In some States of this country such damages are allowed by statute, and in others they are by statute prohibited. In most of the States, including this State, such damages are allowed to the person directly injured in cases of wrong committed with malice or reckless disregard of the rights of others. Such damages are allowed in this State in an action by a parent against a person who seduces his daughter. It was said in Cowden v. Wright (supra): "It is true, that in the action for the seduction of a daughter, the jury in fixing upon the damages may regard the wounded feelings