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(108 Ohio St. 346, 140 N. E. 765.) ployment negligently supplies a for; proof of a mistake or inadvertharmful drug in lieu of a harmless ence upon the part of the druggist one called for, either by prescrip- furnishes an infer

Evidence-pretion or otherwise, and injury re- ence sufficient to sumption of sults from taking it, the druggist establish a prima negligence. will be liable in damages.” 19 C. J. facie case. It raises a presumption 780, where a large number of au- of negligence which entitles the custhorities are cited, some of which tomer to recover unless that prefully support the text.

sumption is rebutted. Cincinnati The principal cases cited by Traction Co. v. Holzenkamp, 74 plaintiffs in error are Brown v. Ohio St. 379, 6 L.R.A.(N.S.) 800, Marshall, 47 Mich. 576, 41 Am. 113 Am. St. Rep. 980, 78 N. E. 529, Rep. 728, 11 N. W. 392, and Howes 20 Am. Neg. Rep. 186. Were the v. Rose, 13 Ind. App. 674, 55 Am. rule otherwise, plaintiffs in error St. Rep. 251, 42 N. E. 303. In the could not find support in Brown v. latter, the first proposition of the Marshall, supra, for the reason that syllabus reads: "The mere sale of in the case at bar the trial court a poisonous drug to one who asks did, in fact, charge the jury that for a harmless one is insufficient to negligence

negligence was necessary to be show negligence of the druggist in proved. He was neither requested making the sale."

nor did he charge that a prima The Howes v. Rose Case was de- facie case of negligence was made cided by the Indiana court in 1895, if the defendants sold or delivered but was expressly overruled in 1907 to the plaintiff an injurious drug by the same court in Knoefel v. At- instead of a harmless one asked for. kins, 40 Ind. App. 428, 81 N. E. Davis v. Guarnieri, 45 Ohio St. 600, as shown by the following syl- 470, 4 Am. St. Rep. 548, 15 N. E. labus : "Negligence is presumed, 350, supports the principle here anwhere the evidence shows that a nounced, although the sale by the druggist sold acetanilid to a cus- druggist in that case was a poison tomer who ordered phosphate of which had not been labeled in comsoda, and such customer was se- pliance with the statute. In its verely injured thereby, the doctrine

opinion, on page 493, the court said of res ipsa loquitur applying.

that the jury were amply justified Howes v. Rose, 13 Ind. App. 674,

in finding by their general verdict overruled.”

that the plaintiff "called at the drug The Knoefel Case, together with

store of the defendant for a harmButterfield v. Snellenburg, 231 Pa. 88, 79 Atl. 980, sustains the prin

less medicine; that the agent of the ciple announced in the following

defendant carelessly sold him a poitext: "Except in some jurisdic

sonous drug

drug without informing tions, evidence that a harmless drug

himself by whom or for what it was was called for and that by mistake

intended to be used; that the pura harmful drug was furnished is chaser, supposing it to be what he sufficient to establish a prima facie

had called for, administered it to case of negligence." 19 C. J. 785. his wife, who took it in the belief

It is clear that the principle res that it was the harmless medicine, ipsa loquitur should be applied in and instantly died from its effects." cases of this character. The drug- With this situation in mind, the gist has the sole control of the opinion on page 492 of 45 Ohio St. drugs which he offers for sale, both states: “It is not a sound proposiharmful and harmless. His rela- tion to say that a dealer in drugs, tion to the community is such that having in stock, and for sale, deadly there is an obligation cast upon him poisons, owes no duty to persons to see that no harmful or poisonous who do not deal directly with him drug shall be delivered to a custom- in relation to them. The public er when a harmless one is asked safety and security against the fatal consequences of negligence in We are of the opinion that, while keeping, handling, and disposing of there was no error in the charge of such dangerous drugs, is a consid- the trial court in submitting the eration to which no dealer can safe- question of negligence to the jury, ly close his eyes.”

the court could well have charged, It is evident from the report of if the proof warranted it, that the the Guarnieri Case that the judg- sale and delivery of a harmful drug ment was not predicated either up- to a customer, in lieu of a harmless on the fact that the sale was of a one called for, would constitute negpoisonous drug or that the word ligence prima facie, which, unless "Poison" was not labeled on the rebutted, would entitle the plaintiff bottle. In the latter connection the to recover. The judgment of the court simply held that proof could

Court of Appeals is affirmed. be tendered of the fact that the Marshall, Ch. J., and Wanamaker, bottle was not labeled as required Robinson, Matthias, Day, and Alby statute.

len, JJ., concur.

ANNOTATION.

Liability of druggist for injury in consequence of mistake.

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 phar

macist, 1342. II. Prescription:

a. In general, 1343.

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.

1. 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

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 necessary to consider the poisonous fault.

character of so many of the drugs with Thus, it has been said that the rule which the apothecary deals, and the of liability applicable to a druggist in grave and fatal consequences which cases of mistake as to the article sold may follow the want of due care. In is the same as that governing the lia- such a case 'ordinary care' calls for a bility of professional persons whose degree of vigilance and prudence comwork requires special knowledge or mensurate with the dangers involved. skill, and he is not legally responsible The general customer ordinarily has for any unintentional consequential no definite knowledge concerning the injury which results from a lawful numerous medicines and poisons act, where a failure to exercise due specified in the 'U. S. Dispensatory and proper care cannot be imputed to and Pharmacopoeia', which registered him. Allan v. State S. S. Co. (1892) apothecaries are by our statutes ex132 N. Y. 91, 15 L.R.A. 166, 28 Am. St. pressly allowed to keep, but must rely Rep. 556, 30 N. E. 482. The burden of implicitly upon the

implicitly upon the druggist, who proving such lack of care when the act

holds himself out as one having the is lawful is upon the plaintiff.

peculiar learning and skill, and conThe care required in the conduct of ceptions of legal duty, necessary to a the business must be commensurate safe and proper discharge of that with the danger involved and the skill duty. 'Ordinary care' with reference employed, and must correspond with

to the business of a druggist must, the superior knowledge of the busi- therefore, be held to signify the highness which the law demands. United est practicable degree of prudence, States v. Pineda (1918) 37 Philippine, thoughtfulness, and vigilance, and the 456. An imperative duty rests upon most exact and reliable safeguards, the druggist to take precautions to

consistent with the reasonable conprevent death or serious injury to any- duct of the business, in order that one who relies upon his peculiar human life may not constantly be learning, and, as the nature of drugs exposed to the danger flowing from is such that an examination will not the substitution of deadly poisons for avail the purchaser anything, it fol

harmless medicine." lows that the druggist warrants that

In view of the consequences likely he will deliver the drugs called for; to result from any inattention or want the doctrine of caveat emptor cannot of care or skill, druggists or apotheapply to the purchase of such articles. caries engaged in compounding drugs Ibid.

and medicines are not only required The measure of care which to be skilful, but should be druggist must exercise in reference to ceedingly cautious and prudent; the preventing injury to his customers care required is commensurate with through a mistake in the sale of an the danger involved, and the skill emarticle is well expressed in Tremblay ployed must correspond with the suv. Kimball (1910) 107 Me. 53, 29 perior knowledge of the business L.R.A.(N.S.) 900, 77 Atl. 405, Ann. which the law requires. Howes v. Cas. 1912C, 1215, where the court Rose (1895) 13 Ind. App. 674, 55 Am. states: “The legal measure of the St. Rep. 251, 42 N. E. 303. duty of druggists toward their patrons, And it has been said that a druggist as in all other relations of life, is must know the properties of his drugs properly expressed by the phrase and be able to distinguish them from 'ordinary care,' yet it must not be for- each other, and that it is his duty to gotten that it is ‘ordinary care' with qualify himself, or employ those who reference to that special and peculiar are qualified, to attend to the business business. In determining what degree of compounding and vending mediof prudence, vigilance, and thought- cines and drugs, so that one drug may fulness will fill the requirements of not be sold for another, and that only 'ordinary care' in compounding medi- the proper medicines, and none other, cines and filling prescriptions, it is are used in compounding prescrip

a

ex

tions; and a druggist, who, in com- of no negligence, and it is error to pounding an innocent medicine, runs instruct the jury that, if they find the it through a mill in which he knows defendant made a mistake in comthat a poisonous drug has been pounding the prescription, they should ground, as a result of which some of find for the plaintiff. Faulkner v. the poisonous drug is mixed with the Birch (1905) 120 Ill. App. 281. The medicine which he is preparing, is defense in this case was that the deliable to the user of the medicine for fendant was not negligent in filling injuries resulting from the presence the prescription, for the reason that of the poisonous drug. Fleet v. he had obtained the materials therefor Hollenkemp (1852) 13 B. Mon. (Ky.) from another druggist, who had mis219, 56 Am. Dec. 563. The court stated takenly sent him the wrong chemicals, that the legal maxim "caveat emptor" which bore a striking similarity to the should in cases of vendors of drugs kind he ordered. be changed to "caveat vendor," and And in Beckwith v. Oatman (N. that the druggist could not escape re- Y.) infra, II. a, where it was alleged sponsibility for a mistake in the mix- that the defendant's clerk, in comture of a drug sold by him on the pounding a prescription for the plainpretext that it was accidental, or an tiff, used the wrong drug, in holding innocent mistake, or that he had been that the jury should have been charged careful and particular and had used that the plaintiff could not recover if extraordinary care and diligence in the defendant's clerk exercised proper compounding the medicine.

care in putting up the prescription, And in Smith v. Middleton (1902) notwithstanding that there might have 112 Ky. 588, 56 L.R.A. 484, 99 Am. St. been a mistake, the court stated that Rep. 308, 66 S. W. 388, it was declared the defendant was entitled to have the that it is incumbent upon a druggist to question as to the competency of his exercise that high degree of caution clerk and the exercise of due care on and care called for by the peculiar and his part submitted to the jury. dangerous nature of his business; in In Brown V. Marshall (1882) 47 other words, that in a business so Mich. 576, 41 Am. Rep. 728, 11 N. W. hazardous, having to do directly and 392, it was held that the mistake of frequently with the health and lives a druggist in selling a poisonous drug of a number of people, the highest de- where a harmless one was called for gree of care and prudence for the did not necessarily, of itself, constisafety of its customers is required. tute a cause of action, but was a mat

And it has been held that the lia- ter of evidence on the question of bility of a druggist is that of an insur- negligence. The court stated that er.

Fleet v. Hollenkemp (Ky.) supra, while it must be conceded that drugwhere the court, in answer to the gists are held to a very high degree of question whether in legal estimation care, which is properly proportionate a druggist was to be regarded as an to the danger involved, it did not find insurer, stated that no good reason that the authorities had gone so far existed why the vendor of drugs as to dispense with actual negligence should be entitled to a relaxation of a necessary element of liability the rule applicable to the vendor of when a mistake occurs. provisions, which was that the vendor And in Marx v. Schultz (1919) 207 undertook and assured that the article Mich. 655, 175 N. W. 182, 19 N. C. C. A. was wholesome. Sound public policy, 976, where the druggist, in writing it was said, required the rule to be directions for administering Fowler's rigidly applied to cases such as that solution, wrote “teaspoonful,” inunder consideration.

stead of "three drops” as called for In an action against a druggist for by the prescription, it was held, reinjuries caused through a mistake on versing a judgment of the trial court his part in compounding a prescrip- directing a verdict for the defendant, tion, the druggist has the right, if he that the question as to whether the can do so, to show that he was guilty death of the plaintiff's wife was

as

caused through the mistake of the with) ante, 1333, holds that the princidruggist in writing the directions ple of res ipsa loquitur should be apshould have been submitted to the plied to the case of a druggist inadjury.

vertently selling an injurious drug And see Knoefel v. Atkins (Ind.) to a customer, in place of the harminfra, I. b, where the court stated that less drug asked for. the druggist was entitled to show And in Tucker v. Graves (1920) 17 that the circumstances surrounding Ala. App. 602, 88 So. 40, the court the case were such that he could not stated that there was authority to be charged with lack of due care. the effect that a mistake by a druggist

Some courts have taken the view in giving a poison in place of a harmthat a druggist's liability is based on less drug is res ipsa loquitur, and in an implied warranty that the article itself sufficient to impute negligence, sold is the one called for by the cus- but that under the facts of the case tomer.

it was not necessary to go to that exThus, it has been held that, where tent. a druggist is asked for a drug for a But in Howes V. Rose (1895) 13 particular specified purpose, he im- Ind. App. 674, 55 Am. St. Rep. 251, 42 pliedly warrants that the drug sold N. E. 303, it was held that the mere is suitable for that purpose, and is sale of the wrong drug did not esliable for injuries suffered because tablish a prima facie case of neglithe drug sold was a solution of ab- gence against the druggist such as normal strength. Goldberg v. Hege- would support a judgment for the man & Co. (1908) 60 Misc. 107, 111 purchaser for injuries alleged to have N. Y. Supp. 679, holding a druggist resulted from the use of such drugs, liable for the injurious effects on an and, in the absence of any facts esapplication of a corrosive sublimate tablishing negligence on the part of which the plaintiff had purchased, the druggist, the plaintiff is not enwith the knowledge of the druggist titled to judgment. that it was to be applied to the skin. Howes's Case (Ind.) supra, The court stated that the case was overruled in Knoefel v. Atkins (1907) analogous to a case where the drug- 40 Ind. App. 428, 81 N. E. 600, where gist sells a harmful drug as a harm- the court held that the general rule less one.

And see United States v. that where an accident happens such Pineda (Philippine) supra, I. a.

as ordinarily would not occur if due A druggist impliedly warrants that care were exercised by those having the article which he sells is the article control of the instrumentalities causcalled for, and is liable on breach of ing the accident, and it appears that warranty for any injuries resulting such instrumentalities are under the from a mistake in giving the pur- control of the defendant, who owes chaser the wrong article. Hendry v. the duty of exercising care towards Judge & D. Drug Co. (1922) 211 Mo. the plaintiff, the proof of the circumApp. 166, 245 S. W. 358.

stances of the accident and the inBut in Wilson v. Faxon, Williams & jury resulting therefrom casts a preFaxon (1910) 138 App. Div. 366, 122 sumption of negligence and the burN. Y. Supp. 783, it was held that an den of explaining the accident consist. action for a breach of warranty would ently with due care of the defendant, not lie against a druggist who sold was applicable to the case of a drugtablets stating that they were gist selling a poisonous drug, by miscara, when in fact they were composed take, to a customer who asked for a of a combination of other ingredients,

harmless remedy, for when, in such the taking of which resulted in an in- a case, the druggist or his clerk deals jury to the plaintiff's wife.

out poison by mistake, 'the circum

stances make up a prima facie case of b. Presumption of negligence; res ipsa negligence, and impose upon the drugloquitur.

gist the burden of showing that the EDELSTEIN v. COOK (reported here- mistake was, under the circumstances,

was

cas

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