consistent with due care on his part. The court stated, however, that it did not hold that the druggist could not show that the mistake made was excusable, and that the circumstances were such that he could not be charged with a lack of due care, but that the burden rested on him to explain the mistake.

And in Darks v. Scudder-Gale Grocer Co. (1910) 146 Mo. App. 246, 130 S. W. 430, in an action against a wholesale grocery company for selling wood alcohol instead of ginger extract, the court stated: "If a manufacturer or dealer in drugs puts a label upon the article indicating that it is harmless, and the label is false and the article poisonous, then, as a matter of law, he is liable, as proof of the fact is proof of the negligence, and it is not necessary to submit to the jury the question as to whether such act is negligence."

The use of strychnine by a druggist in filling a prescription, when a preparation of camphor is called for, establishes negligence on his part unless a satisfactory explanation can be given, and, in the, absence of such explanation, he will be liable for an injury consequent upon such mistake. Minner v. Scherpich (1886) 5 N. Y. S. R. 851.

In Fleet v. Hollenkemp (1852) 13 B. Mon. (Ky.) 219, 56 Am. Dec. 563, in holding a druggist liable for injuries. resulting from his having intermixed a poisonous drug in a medicine which he was compounding, the court stated that the defendant's responsibility in such a case did not depend upon the degree of care, diligence, or negligence used by him, but upon the naked fact that, when requested to compound a medicine to be composed of certain drugs, the preparation sent also contained poisonous drugs which had been recently ground in the mill in which the compound was prepared, the taking of which caused injury to the plaintiff.

In addition to the cases which expressly consider the point and hold that the mistake itself creates a presumption, or at least warrants an inference, of negligence on the part of

the druggist, the point seems to be involved or assumed in the statements frequently made by the courts in stating the liability of druggists, where there was no attempt to distinguish between the substantive question of liability and the question as to prima facie evidence of negligence.

c. Sale of nonpoisonous articles.

In EDELSTEIN v. Cook (reported herewith) ante, 1333, it is stated that there is no distinction in principle between the case of a sale of a deadly poison by mistake, and the sale of one which is injurious but not fatally harmful, for, while the handling of a deadly poison may impose a greater care on the druggist, there is no less an obligation to see that a customer does not, in lieu of his order, receive a drug which will cause him pain and suffering when taken in reliance that it is the drug asked for.

And it has been held that the doctrine laid down in Thomas v. Winchester (N. Y.) infra, VI., that one who negligently sells a poisonous drug as a harmless medicine is liable to all persons who, without their fault, are injured by using such medicine, extends to the sale of remedies which are likely to become injurious to the health of many persons who purchase them, when used in the course ordinarily contemplated by the vendor, and is not limited to the sale of substances of a deadly nature. Wilson v. Faxon, Williams & Faxon (1909) 63 Misc. 561, 117 N. Y. Supp. 361. And the jury may be warranted in finding that a druggist who, under his own label, sells a prepared proprietary medicine without any actual knowledge of its ingredients, and without making an analysis thereof, is negligent, notwithstanding that large quantities of such medicine have been sold without injury having resulted.

d. Mistake of clerk.

1. In general.

It is well settled that a druggist is liable for the negligence of his clerk who by mistake sells an article other

than that called for, or improperly prepares a prescription for a custom

er.

Connecticut.-Tombari v. Connors (1912) 85 Conn. 231, 39 L.R.A. (N.S.) 274, 82 Atl. 640.

Illinois. Smith v. Hays (1887) 23 Ill. App. 244.

Indiana.-Howes v. Rose (1895) 13 Ind. App. 674, 55 Am. St. Rep. 251, 42 N. E. 303.

Iowa.-Burgess v. Sims Drug Co. (1901) 114 Iowa, 275, 54 L.R.A. 364, 89 Am. St. Rep. 359, 86 N. W. 307, 10 Am. Neg. Rep. 42.

Michigan. Brown V. Marshall (1882) 47 Mich. 576, 41 Am. Rep. 728, 11 N. W. 392.

Nebraska. Moses v. Mathews (1914) 95 Neb. 672, 146 N. W. 920, Ann. Cas. 1915A, 698.

New York. Horst v. Walter (1907) 53 Misc. 591, 103 N. Y. Supp. 750; Moran v. Dake Drug Co. (1912) 134 N. Y. Supp. 995, affirmed in (1913) 155 App. Div. 879, 139 N. Y. Supp. 1134.

Ohio.-Davis v. Guarnieri (1887) 45 Ohio St. 470, 4 Am. St. Rep. 548, 15 N. E. 350; EDELSTEIN v. Cook (reported herewith) ante, 1333.

Oregon.-Goodwin v. Rowe (1913) 67 Or. 1, 135 Pac. 171, Ann. Cas. 1915C, 416.

Texas.

Hargrave v. Vaughn (1891) 82 Tex. 347, 18 S. W. 695. Wisconsin, Plank Kennedy v. (1904) 120 Wis. 197, 97 N. W. 895. But it must be proven that the clerk failed to exercise due care. Brown v. Marshall (Mich.) supra.

Admitting that it is entirely lawful for registered pharmacists to employ servants to sell lotions other than drugs and medicines, and authorize or permit these servants, under their supervision, to vend drugs, yet if such servant, in vending drugs,

negligently delivers a poison in place of the harmless medicine called for, the druggist will be liable for an injury caused to the purchaser by such negligence, and it is wholly immaterial whether the negligence is the mistake of the servant, or of the druggist, or of both combined. Smith v. Hays (Ill.) supra, where a druggist was held liable for injuries resulting from the mistake of his servant in selling the plaintiff belladonna in place of extract of dandelion, it appearing that the prescription was prepared in the presence of the defendant.

And in Moses v. Mathews (Neb.) supra, the court affirmed a judgment for the plaintiff in an action to recover for the death of the plaintiff's intestate, caused by swallowing tartar emetic, which the deceased had purchased as cream of tartar from a youth in charge of the defendant's drug store, although the defendant offered evidence that the person who sold the article to the deceased was forbidden to sell drugs. The court stated that if one enters a store and finds a person apparently in charge, he has a right to presume that that person is authorized to sell any ordinary articles of merchandise and to rely upon his procuring and furnishing the article asked for; and that it was a matter of common knowledge that chemical preparations such as bicarbonate of soda and cream of tartar, while in one sense drugs, are in general use for domestic purposes, and require no special skill or knowledge to sell.

And in Hansford v. Payne (1875) 11 Bush (Ky.) 380, where the death of plaintiff's intestate was caused through the negligence of the defendant's prescription clerk in using croton oil instead of linseed oil in filling a prescription, the court stated that if the intestate had survived, he would have had a cause of action against the employer of the prescription clerk; the principal question was, however, whether the right of action survived to the administrator, and the court decided that the administrator might recover for the suffering and agony for which the intestate might have re

covered, had he survived, and had obtained perfect and permanent relief at the moment of his death.

And it has been held that a druggist is liable for the act of his clerk, who, when asked for a solution with which to wash out a wound, gave the customer a strong solution of carbolic acid, which brought on injurious consequences when applied to the purpose for which it was purchased. Horst v. Walter (1907) 53 Misc. 591, 103 N. Y. Supp. 750.

And in Goodwin v. Rowe (Or.) supra, a druggist was held liable for the negligence of an unregistered clerk in his employ, in supplying a dangerous solution of an antiseptic where a harmless solution was called for, the solution having been prescribed by a phyiscian. The clerk The clerk had, in violation of orders, applied the solution to the person of the plaintiff; the court held, however, that that fact was immaterial, as the gravamen of the charge was that the clerk had, in response to the physician's prescription, supplied the wrong solution.

One who conducted a drug department in connection with a general store was held liable in Kennedy v. Plank (Wis.) supra, for the death of the plaintiff's horses as a consequence of his feeding them copperas, which he had purchased from the defendant's drug clerk as Glauber's salt.

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

A druggist cannot escape liability for injuries caused by the negligence of his clerk in compounding a prescription by showing that the clerk is a licensed pharmacist. Tombari v. Connors (1912) 85 Conn. 231, 39 L.R.A. (N.S.) 274, 82 Atl. 640; Burgess v. Sims Drug Co. (1901) 114 Iowa, 275, 54 L.R.A. 364, 89 Am. St. Rep. 359, 86 N. W. 307, 10 Am. Neg. Rep. 42; McCubbin v. Hastings (1875) 27 La. Ann. 713. And see Moran v. Dake Drug Co. (1912) 134 N. Y. Supp. 995, affirmed in (1913) 155 App. Div. 879, 139 N. Y. Supp. 1134, and Hargrave v. Vaughn (1891) 82 Tex. 347, 18 S. W. 695.

Thus, in Tombari V. Connors (Conn.) supra, it was held that a druggist was not relieved from liability for injuries caused by the negligence of his clerk, who, in compounding a prescription, mistakenly substituted calomel for calumba, by the fact that the clerk was a licensed pharmacist.

And this view is supported in Burgess v. Sims Drug Co. (1901) 114 Iowa, 275, 54 L.R.A. 364, 89 Am. St. Rep. 359, 86 N. W. 307, 10 Am. Neg. Rep. 42, holding that a druggist was not relieved from liability for injuries caused by a prescription negligently put up, by the fact that the negli gence was that of a registered pharmacist employed by him, which class alone was allowed by statute to fill prescriptions. The court stated: "It is true that the legislature has provided, as a police regulation for the protection of the public, that no one who is not a registered pharmacist should fill prescriptions; but when the defendants undertook, as a part of their regular business, that the prescription should be filled, it was wholly immaterial to the customer, so far as the defendant's liability was concerned, whether the prescription was filled by one of the defendants, or by an employee." The negligence in this case was in the preparation of an eyewash, the use of which so injured the plaintiff's eye as to cause the loss thereof.

And in McCubbin v. Hastings (1875) 27 La. Ann. 713, where a drug clerk negligently made a mistake in compounding a prescription, it was held that the fact that the clerk was a competent druggist did not relieve his employer from liability for his negligence. The court said: "It may, however, be assumed that he was competent. The defendant's liability would be none the less certain. The defendant is himself represented as being a most competent druggist. If he had made the mistake, would his proficiency in his calling shield him? Or would it not rather aggravate the fault? Incompetency and carelessness and such mistakes arise from one or the other of these causes-re

sult in the same way. Either or both produce suffering and sometimes death. And can it be that if a physician should prescribe for his slightly ailing patient a small quantity of calomel and soda, and the druggist were to substitute arsenic for soda, that he would shield himself from the consequences which might result by saying, if the prescription was compounded by himself, that it was a mistake, and if the act of his servant, that he could not have prevented it? The law does not place a community in the position of being poisoned by mistakes, with no one to be held responsible therefor. If it was the master who did the wrong, the master is responsible. If it was his servant who did it, he is still responsible, for the master is responsible for the acts of his servant when done in the course of his usual employment."

In Moran v. Dake Drug Co. (1912) 134 N. Y. Supp. 995, affirmed in (1913) 155 App. Div. 879, 139 N. Y. Supp. 1134, where the plaintiff recovered damages for the negligence of the defendant's clerk in selling bichloride of mercury tablets for bromide tablets, the defense was that the plaintiff had called for the former and not the latter, and the court held that although the plaintiff was alone in this statement, and his testimony was disputed by the clerk, the question of negligence was for the jury, and the verdict for the plaintiff should be sustained.

And in an action to recover for personal injuries caused through the negligence of the defendant's servant in furnishing morphine for calomel, the defendant was not permitted to show that the servant was ordinarily a careful, sober, and painstaking man, where there was no attempt to show that he was generally careless or dissipated, and the sole question submitted to the jury was whether the clerk did furnish the morphine instead of calomel, and whether such act was or was not grossly negligent. Smith v. Middleton (1902) 112 Ky. 588, 56 L.R.A. 484, 99 Am. St. Rep. 308, 66 S. W. 388.

In Hargrave v. Vaughn (Tex.) su

pra, in an action by a father to recover for the death of an infant child, alleged to have been caused by the negligence of the defendants' clerk in preparing a prescription, it was held that the plaintiff was entitled to recover from the druggists expense in the way of medical attention and care caused through the negligence of the defendants' clerk, but was not, under the Texas Death Statutes, entitled to recover from the employers damages for the death, but that such recovery could only be had against the clerk. The defendants contended in this case that the clerk was a skilful and careful apothecary, and a careful man, and that they were not negligent in employing him and keeping him in their service. No point, however, was made of this contention.

II. Prescription.

a. In general.

Druggists have frequently been held liable for injurious effects as a consequence of a mistake in compounding a prescription, in the absence of evidence negativing negligence on their part.

Alabama.-Martin v. Manning, infra, VIII.

Connecticut.-Tombari v. Connors (1912) 85 Conn. 231, 39 L.R.A. (N.S.) 274, 82 Atl. 640, supra, II. d, 2.

District of Columbia. Moore v. Pywell (1907) 29 App. D. C. 312, 9 L.R.A. (N.S.) 1078.

Illinois-Faulkner v. Birch (1905) 120 Ill. App. 281, supra, I. a.

Iowa.-Burgess v. Sims Drug Co. (1901) 114 Iowa, 275, 54 L.R.A. 364, 89 Am. St. Rep. 359, 86 N. W. 307, 10 Am. Neg. Rep. 42, supra, I. d, 2.

Kansas.-Campbell v. Brown (1911) 85 Kan. 527, 117 Pac. 1010, infra, VIII. Kentucky. Fleet v. Hollenkemp (1852) 13 B. Mon. 219, 56 Am. Dec. 563, supra, I. b; Ohio County Drug Co. v. Howard, post, 1355; Hansford v. Payne (1875) 11 Bush, 280, supra, I, d, 1.

Louisiana.-McCubbin v. Hastings (1875) 27 La. Ann. 713, supra, I. d, 2. Maine. Tremblay v. Kimball (1910) 107 Me. 53, 29 L.R.A. (N.S.) 900,

77 Atl. 405, Ann. Cas. 1912C, 1215; Coughlin v. Bradbury (1912) 109 Me. 571, 85 Atl. 294, infra, IV.

New York. Minner v. Scherpich (1886) 5 N. Y. S. R. 852, supra, I. b; Beckwith v. Oatman (1887) 43 Hun, 265.

Ohio. McClardy v. Chandler (1858) 3 Ohio Dec. Reprint, 1, infra, II. b.

Pennsylvania.-McIlvaine v. Lutz (1914) 57 Pa. Super. Ct. 527.

Texas. Hargrave v. Vaughn (1891) 82 Tex. 347, 18 S. W. 695, supra, I. d, 2. A druggist is not relieved from liability for injuries caused by a mistake in filling a prescription, by the fact that, owing to an epidemic, his clerks were nearly exhausted. Ohio County Drug Co. v. Howard (Ky.) post, 1355.

And the fact that one is suffering with an incurable disease does not relieve a druggist from responsibility for accelerating the death of that person through a mistake in compounding a prescription. McClardy v. Chandler (Ohio) supra.

It has been said that a druggist in putting up a prescription is not an absolute insurer, but is bound only to the exercise of ordinary care; ordinary care is, however, required to be measured by the danger that is manifest, so that, in cases where a druggist is compounding a prescription calling for harmless drugs bearing a striking similarity to drugs of poisonous nature, "ordinary" care means a very great degree of care. Faulkner v. Birch (Ill.) supra. See, however, Fleet v. Hollenkemp (Ky.) supra, II. b, which holds a druggist an insurer.

The ordinary care which a druggist is bound to exercise in filling prescriptions is the highest possible degree of prudence, thoughtfulness, and vigilance and the employment of the most exact and reliable safeguards consistent with the reasonable conduct of the business, in order that human life may not be exposed to dangers following from the substitution of deadly poisons for harmless medicines, and a druggist may be found wanting in the exercise of due care in filling a prescription from an open bottle of tablets bearing the manufacturer's

label, where two similar bottles containing tablets were standing side by side, but the tablets in the two were strikingly different in appearance, and those from which he filled the prescription had an extraordinary, if not unprecedented, color for that kind of drug. Tremblay v. Kimball (Me.) supra.

Beckwith v. Oatman (N. Y.) supra, holds that a druggist in filling a prescription must possess the ordinary skill of a druggist or an apothecary, and exercise due care and skill, which are to be proportionate to the gravity of the injury which would naturally result from the want of care.

And in McIlvaine v. Lutz (Pa.) supra, it seems to have been assumed that a druggist who, in filling a prescription, had negligently used a drug of a harmful character instead of the drugs called for by the prescription, would be liable for the injurious effects of his wrongful act. The princi pal question in the case was, however, whether there was a variance between the allegations of the complaint and the proof, and the court held that there was not.

So, in Laturen v. Bolton Drug Co. (1905) 16 N. Y. Anno. Cas. 267, 93 N. Y. Supp. 1035, it was held that, conceding a druggist was negligent in preparing a prescription, in that he put in one ingredient too much, no recovery could be had by the plaintiff where the evidence was not sufficient to show that the plaintiff had been injured by such act.

b. Illegible prescription.

In McClardy v. Chandler (1858) 3 Ohio Dec. Reprint, 1, where a druggist, in preparing a prescription, used ammonia in place of cinnamon, as called for, the court charged the jury, that, before finding negligence on part of the defendant, they should inquire whether the prescription itself was legibly written so that a man using ordinary care would have known what it was.

The fact that a prescription is written in Latin, and so illegibly as to leave it in doubt what drug is intended, does not lessen the duty of a clerk