ployment negligently supplies a harmful drug in lieu of a harmless one called for, either by prescription or otherwise, and injury results from taking it, the druggist will be liable in damages." 19 C. J. 780, where a large number of authorities are cited, some of which fully support the text.

The principal cases cited by plaintiffs in error are Brown v. Marshall, 47 Mich. 576, 41 Am. Rep. 728, 11 N. W. 392, and Howes v. Rose, 13 Ind. App. 674, 55 Am. St. Rep. 251, 42 N. E. 303. In the latter, the first proposition of the syllabus reads: "The mere sale of a poisonous drug to one who asks for a harmless one is insufficient to show negligence of the druggist in making the sale."

The Howes v. Rose Case was decided by the Indiana court in 1895, but was expressly overruled in 1907 by the same court in Knoefel v. Atkins, 40 Ind. App. 428, 81 N. E. 600, as shown by the following syllabus: "Negligence is presumed, where the evidence shows that a druggist sold acetanilid to a customer who ordered phosphate of soda, and such customer was severely injured thereby, the doctrine of res ipsa loquitur applying. Howes v. Rose, 13 Ind. App. 674,

overruled."

The Knoefel Case, together with Butterfield v. Snellenburg, 231 Pa. 88, 79 Atl. 980, sustains the principle announced in the following text: "Except in some jurisdictions, evidence that a harmless drug was called for and that by mistake a harmful drug was furnished is sufficient to establish a prima facie case of negligence." 19 C. J. 785.

It is clear that the principle res ipsa loquitur should be applied in cases of this character. The druggist has the sole control of the drugs which he offers for sale, both harmful and harmless. His relation to the community is such that there is an obligation cast upon him to see that no harmful or poisonous drug shall be delivered to a customer when a harmless one is asked

for; proof of a mistake or inadvertence upon the part of the druggist furnishes an infer- Evidence-pre

ence sufficient to sumption of negligence. establish a prima

facie case. facie case. It raises a presumption of negligence which entitles the customer to recover unless that presumption is rebutted. Cincinnati Traction Co. v. Holzenkamp, 74 Ohio St. 379, 6 L.R.A. (N.S.) 800, 113 Am. St. Rep. 980, 78 N. E. 529, 20 Am. Neg. Rep. 186. Were the rule otherwise, plaintiffs in error could not find support in Brown v. Marshall, supra, for the reason that in the case at bar the trial court did, in fact, charge the jury that negligence was necessary to be proved. He was neither requested nor did he charge that a prima facie case of negligence was made if the defendants sold or delivered to the plaintiff an injurious drug instead of a harmless one asked for.

Davis v. Guarnieri, 45 Ohio St. 470, 4 Am. St. Rep. 548, 15 N. E. 350, supports the principle here announced, although the sale by the druggist in that case was a poison which had not been labeled in compliance with the statute. In its opinion, on page 493, the court said that the jury were amply justified in finding by their general verdict that the plaintiff "called at the drug store of the defendant for a harm

less medicine; that the agent of the defendant carelessly sold him a poisonous drug without informing himself by whom or for what it was intended to be used; that the purchaser, supposing it to be what he had called for, administered it to his wife, who took it in the belief that it was the harmless medicine, and instantly died from its effects." With this situation in mind, the opinion on page 492 of 45 Ohio St. states: "It is not a sound proposition to say that a dealer in drugs, having in stock, and for sale, deadly poisons, owes no duty to persons who do not deal directly with him in relation to them. The public safety and security against the fa

tal consequences of negligence in keeping, handling, and disposing of such dangerous drugs, is a consideration to which no dealer can safely close his eyes."

It is evident from the report of the Guarnieri Case that the judgment was not predicated either upon the fact that the sale was of a poisonous drug or that the word "Poison" was not labeled on the bottle. In the latter connection the court simply held that proof could be tendered of the fact that the bottle was not labeled as required by statute.

We are of the opinion that, while there was no error in the charge of the trial court in submitting the question of negligence to the jury, the court could well have charged, if the proof warranted it, that the sale and delivery of a harmful drug to a customer, in lieu of a harmless one called for, would constitute negligence prima facie, which, unless rebutted, would entitle the plaintiff to recover. The judgment of the Court of Appeals is affirmed.

Marshall, Ch. J., and Wanamaker, Robinson, Matthias, Day, and Allen, JJ.,

concur.

I. In general:

a. Ground of liability; degree of care, 1336.

b. Presumption of negligence; res ipsa loquitur, 1339.

c. Sale of nonpoisonous articles, 1340.

d. Mistake of clerk:

1. In general, 1340.

2. As affected by fact that clerk is registered pharmacist, 1342.

II. Prescription:

a. In general, 1343.

I. In general.

a. Ground of liability; degree of care. As to the liability of a druggist for punitive damages, see annotation to Ohio County Drug Co. v. Howard, post 1355.

With the possible exception of the Kentucky court, which has taken the view that a druggist is an insurer against mistakes in the sale or preparation of drugs, the liability of a druggist for such mistakes depends ultimately and as a matter of substantive law upon negligence. As a practical matter, however, the view that the druggist's liability depends upon negligence, and that he is not an insurer, has in many if not the majority of cases but little effect to reduce the liability, owing to the great difficulty, if not impossibility, of rec

II. continued.

b. Illegible prescription, 1344.
c. Improperly mixing ingredients,
1345.

III. Sale of prepared drug or other article, 1345.

IV. Negligence of purchaser, 1347. V. Purchaser through agent or third person, 1350.

VI. Liability of wholesale druggist to purchaser from retailer, 1352. VII. Mistake as to effect of article sold, 1353.

VIII. Effect of statutes, 1354.

onciling the mistake with the exercise of due care, although it may be supposable that the mistake could be explained consistently with due care on the part of the druggist. The result is that, in practically every case of a mistake in selling a harmful drug in place of the harmless one called for, the druggist has been held liable to one injured as a consequence of such mistake, unless the injured person was contributorily negligent, or the proof failed to establish that the mistake was the proximate cause of the injury.

Fleet v. Hollenkemp (1852) 13 B. Mon. (Ky.) 219, 56 Am. Dec. 563, infra, assumes the liability of a druggist to be that of an insurer; the courts in general, however, take the view that the druggist may show that reasonable care was exercised in the preparation of a drug or in its sale, and that the

mistake was in no way due to his fault.

Thus, it has been said that the rule of liability applicable to a druggist in cases of mistake as to the article sold is the same as that governing the liability of professional persons whose work requires special knowledge or skill, and he is not legally responsible for any unintentional consequential injury which results from a lawful act, where a failure to exercise due and proper care cannot be imputed to him. Allan v. State S. S. Co. (1892) 132 N. Y. 91, 15 L.R.A. 166, 28 Am. St. Rep. 556, 30 N. E. 482. The burden of proving such lack of care when the act is lawful is upon the plaintiff.

The care required in the conduct of the business must be commensurate with the danger involved and the skill employed, and must correspond with the superior knowledge of the business which the law demands. United States v. Pineda (1918) 37 Philippine, 456. An imperative duty rests upon the druggist to take precautions to prevent death or serious injury to anyone who relies upon his peculiar learning, and, as the nature of drugs is such that an examination will not avail the purchaser anything, it follows that the druggist warrants that he will deliver the drugs called for; the doctrine of caveat emptor cannot apply to the purchase of such articles. Ibid.

The measure of care which a druggist must exercise in reference to preventing injury to his customers through a mistake in the sale of an article is well expressed in Tremblay v. Kimball (1910) 107 Me. 53, 29 L.R.A. (N.S.) 900, 77 Atl. 405, Ann. Cas. 1912C, 1215, where the court states: "The legal measure of the duty of druggists toward their patrons, as in all other relations of life, is properly expressed by the phrase 'ordinary care,' yet it must not be forgotten that it is 'ordinary care' with reference to that special and peculiar business. In determining what degree of prudence, vigilance, and thoughtfulness will fill the requirements of 'ordinary care' in compounding medicines and filling prescriptions, it is

necessary to consider the poisonous character of so many of the drugs with which the apothecary deals, and the grave and fatal consequences which may follow the want of due care. In such a case 'ordinary care' calls for a degree of vigilance and prudence commensurate with the dangers involved. The general customer ordinarily has no definite knowledge concerning the numerous medicines and poisons specified in the 'U. S. Dispensatory and Pharmacopoeia', which registered apothecaries are by our statutes expressly allowed to keep, but must rely implicitly upon the druggist, who holds himself out as one having the peculiar learning and skill, and conceptions of legal duty, necessary to a safe and proper discharge of that duty. 'Ordinary care' with reference to the business of a druggist must, therefore, be held to signify the highest practicable degree of prudence, thoughtfulness, and vigilance, and the most exact and reliable safeguards, consistent with the reasonable conduct of the business, in order that human life may not constantly be exposed to the danger flowing from the substitution of deadly poisons for harmless medicine."

In view of the consequences likely to result from any inattention or want of care or skill, druggists or apothecaries engaged in compounding drugs and medicines are not only required to be skilful, but should be exceedingly cautious and prudent; the care required is commensurate with the danger involved, and the skill employed must correspond with the superior knowledge of the business which the law requires. Howes v. Rose (1895) 13 Ind. App. 674, 55 Am. St. Rep. 251, 42 N. E. 303.

And it has been said that a druggist must know the properties of his drugs and be able to distinguish them from each other, and that it is his duty to qualify himself, or employ those who are qualified, to attend to the business of compounding and vending medicines and drugs, so that one drug may not be sold for another, and that only the proper medicines, and none other, are used in compounding prescrip

tions; and a druggist, who, in compounding an innocent medicine, runs it through a mill in which he knows that a poisonous drug has been ground, as a result of which some of the poisonous drug is mixed with the medicine which he is preparing, is liable to the user of the medicine for injuries resulting from the presence of the poisonous drug. Fleet v. Hollenkemp (1852) 13 B. Mon. (Ky.) 219, 56 Am. Dec. 563. The court stated that the legal maxim "caveat emptor" should in cases of vendors of drugs be changed to "caveat vendor," and that the druggist could not escape responsibility for a mistake in the mixture of a drug sold by him on the pretext that it was accidental, or an innocent mistake, or that he had been careful and particular and had used extraordinary care and diligence in compounding the medicine.

And in Smith v. Middleton (1902) 112 Ky. 588, 56 L.R.A. 484, 99 Am. St. Rep. 308, 66 S. W. 388, it was declared that it is incumbent upon a druggist to exercise that high degree of caution and care called for by the peculiar and dangerous nature of his business; in other words, that in a business so hazardous, having to do directly and frequently with the health and lives of a number of people, the highest degree of care and prudence for the safety of its customers is required.

And it has been held that the liability of a druggist is that of an insur

er.

Fleet v. Hollenkemp (Ky.) supra, where the court, in answer to the question whether in legal estimation a druggist was to be regarded as an insurer, stated that no good reason existed why the vendor of drugs should be entitled to a relaxation of the rule applicable to the vendor of provisions, which was that the vendor undertook and assured that the article was wholesome. Sound public policy, it was said, required the rule to be rigidly applied to cases such as that under consideration.

In an action against a druggist for injuries caused through a mistake on his part in compounding a prescription, the druggist has the right, if he can do so, to show that he was guilty

of no negligence, and it is error to instruct the jury that, if they find the defendant made a mistake in compounding the prescription, they should find for the plaintiff. Faulkner v. Birch (1905) 120 Ill. App. 281. The defense in this case was that the defendant was not negligent in filling the prescription, for the reason that he had obtained the materials therefor from another druggist, who had mistakenly sent him the wrong chemicals, which bore a striking similarity to the kind he ordered.

And in Beckwith v. Oatman (N. Y.) infra, II. a, where it was alleged that the defendant's clerk, in compounding a prescription for the plaintiff, used the wrong drug, in holding that the jury should have been charged that the plaintiff could not recover if the defendant's clerk exercised proper care in putting up the prescription, notwithstanding that there might have been a mistake, the court stated that the defendant was entitled to have the question as to the competency of his clerk and the exercise of due care on his part submitted to the jury.

In Brown v. Marshall (1882) 47 Mich. 576, 41 Am. Rep. 728, 11 N. W. 392, it was held that the mistake of a druggist in selling a poisonous drug where a harmless one was called for did not necessarily, of itself, constitute a cause of action, but was a matter of evidence on the question of negligence. The court stated that while it must be conceded that druggists are held to a very high degree of care, which is properly proportionate to the danger involved, it did not find that the authorities had gone so far as to dispense with actual negligence as a necessary element of liability when a mistake occurs.

And in Marx v. Schultz (1919) 207 Mich. 655, 175 N. W. 182, 19 N. C. C. A. 976, where the druggist, in writing directions for administering Fowler's solution, wrote "teaspoonful," instead of "three drops" as called for by the prescription, it was held, reversing a judgment of the trial court directing a verdict for the defendant, that the question as to whether the death of the plaintiff's wife was

caused through the mistake of the druggist in writing the directions should have been submitted to the jury.

And see Knoefel v. Atkins (Ind.) infra, I. b, where the court stated that the druggist was entitled to show that the circumstances surrounding the case were such that he could not be charged with lack of due care.

Some courts have taken the view that a druggist's liability is based on an implied warranty that the article. sold is the one called for by the customer.

Thus, it has been held that, where a druggist is asked for a drug for a particular specified purpose, he impliedly warrants that the drug sold is suitable for that purpose, and is liable for injuries suffered because the drug sold was a solution of abnormal strength. Goldberg v. Hegeman & Co. (1908) 60 Misc. 107, 111 N. Y. Supp. 679, holding a druggist liable for the injurious effects on an application of a corrosive sublimate which the plaintiff had purchased, with the knowledge of the druggist that it was to be applied to the skin. The court stated that the case was analogous to a case where the druggist sells a harmful drug as a harmless one. And see United States v. Pineda (Philippine) supra, I. a.

A druggist impliedly warrants that the article which he sells is the article called for, and is liable on breach of warranty for any injuries resulting from a mistake in giving the purchaser the wrong article. Hendry v. Judge & D. Drug Co. (1922) 211 Mo. App. 166, 245 S. W. 358.

But in Wilson v. Faxon, Williams & Faxon (1910) 138 App. Div. 366, 122 N. Y. Supp. 783, it was held that an action for a breach of warranty would not lie against a druggist who sold tablets stating that they were cascara, when in fact they were composed of a combination of other ingredients, the taking of which resulted in an injury to the plaintiff's wife.

b. Presumption of negligence; res ipsa loquitur.

EDELSTEIN V. Cook (reported here

with) ante, 1333, holds that the principle of res ipsa loquitur should be applied to the case of a druggist inadvertently selling an injurious drug to a customer, in place of the harmless drug asked for.

And in Tucker v. Graves (1920) 17 Ala. App. 602, 88 So. 40, the court stated that there was authority to the effect that a mistake by a druggist in giving a poison in place of a harmless drug is res ipsa loquitur, and in itself sufficient to impute negligence. but that under the facts of the case it was not necessary to go to that extent.

But in Howes v. Rose (1895) 13 Ind. App. 674, 55 Am. St. Rep. 251, 42 N. E. 303, it was held that the mere sale of the wrong drug did not establish a prima facie case of negli gence against the druggist such as would support a judgment for the purchaser for injuries alleged to have resulted from the use of such drugs, and, in the absence of any facts establishing negligence on the part of the druggist, the plaintiff is not entitled to judgment.

Howes's Case (Ind.) supra, was overruled in Knoefel v. Atkins (1907) 40 Ind. App. 428, 81 N. E. 600, where the court held that the general rule that where an accident happens such as ordinarily would not occur if due care were exercised by those having control of the instrumentalities causing the accident, and it appears that such instrumentalities are under the control of the defendant, who owes the duty of exercising care towards the plaintiff, the proof of the circumstances of the accident and the injury resulting therefrom casts a presumption of negligence and the burden of explaining the accident consist. ently with due care of the defendant, was applicable to the case of a druggist selling a poisonous drug, by mistake, to a customer who asked for a harmless remedy, for when, in such a case, the druggist or his clerk deals out poison by mistake, the circumstances make up a prima facie case of negligence, and impose upon the druggist the burden of showing that the mistake was, under the circumstances,