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to be alert to avoid mistakes, and in Ind. App. 674, 55 Am. St. Rep. 251, 42 such case he should take all reasonable N. E. 303, and Knoebel v. Atkins precaution to be certain that he does (1907) 40 Ind. App. 428, 81 N. E. 600, not sell one thing when another is

supra, I. b. called for. Tombari Connors Kentucky. Smith v. Middleton (Conn.) supra, II. a.

(1902) 112 Ky. 588, 56 L.R.A. 484, 99 An obligation rests upon a druggist Am. St. Rep. 308, 66 S. W. 388, supra, to fill a prescription accurately, and, I. d, 2; Sutton v. Wood (1905) 120 Ky. if he fails to do so, he is responsible 23, 85 S. W. 201, 8 Ann Cas. 894, infra, for the evil consequences; it must ap- V. pear, however, in order to find him Louisiana.—Walton v. Booth (1882) negligent, that the prescription was 34 La. Ann. 913. legibly written so that with ordinary Massachusetts. Norton v. Sewall care he could have known what it was. (1870) 106 Mass. 143, 8 Am. Rep. 298. McClardy v. Chandler (Ohio) supra. Michigan. Brown v. Marshall

(1882) 47 Mich. 576, 41 Am. Rep. 728, c. Improperly mixing ingredients.

11 N. W. 392, supra, I. a. In Butterfield v. Snellenburg (1911)

Missouri. Fisher v. Golladay 231 Pa. 88, 79 Atl. 980, the defendant

(1889) 38 Mo. App. 531, and Peterson was held liable for injuries suffered

v. Westman (1903) 103 Mo. App. 672, by a customer as a consequence of

77 S. W. 1015, infra, IV.; Kelly v. Ross taking a dose of aromatic spirits of

(1912) 165 Mo. App. 475, 148 S. W. ammonia which had been improperly

1000; Hendry v. Judge & D. Drug Co. stirred or mixed by the defendant's

(1922) 211 Mo. App. 116, 245 S. W. 358, clerk, in charge of the drug depart

infra, IV. ment of a general store, under the be- Nebraska. Moses v. Mathews lief that the clerk had prepared a

(1914) 95 Neb. 672, 146 N. W. 920, harmless dose of the drug which was

Ann. Cas. 1915B, 698. called for.

New York.—Thomas v. Winchester And it has been held that an un

(1852) 6 N. Y. 397, 57 Am. Dec. 455, registered druggist will be liable for

infra, VI.; Quin v. Moore (1857) 15 the injurious effects of a drug pre

N. Y. 432, infra V.; Horst v. Walter pared by him, where, in filling a pre

(1907) 53 Misc. 591, 103 N. Y. Supp. scription, he negligently failed proper

750, supra, I. d, 1; Willson v. Faxon, ly to mix the ingredients of the com

Williams & Faxon (1913) 208 N. Y. pound so as to distribute them evenly

108, 47 L.R.A.(N.S.) 693, 101 N. E. 799, throughout the mixture. Coughlin v.

Ann. Cas. 19140, 49; Moran v. Dake Bradbury (1912) 109 Me. 571, 85 Atl.

Drug Co. (1912) 134 N. Y. Supp. 995, 294.

affirmed in (1913) 155 App. Div. 879, III. Sale of prepared drug or other 139 N. Y. Supp. 1134, supra, I. d, 2; article.

Flynt v. Rightmeyer (1919) 107 Misc. The courts are in accord in holding 692, 177 N. Y. Supp. 842, infra, VIII. a druggist liable for a mistake in sell- Ohio.—Davis v. Guarnieri (1887) 45 ing a drug or other article other than Ohio St. 470, 4 Am. St. Rep. 548, 15 N. that called for by the purchaser, in the E. 350, infra, IV.; EDELSTEIN V. COOK absence of evidence negativing negli- (reported herewith) ante, 1333. gence, provided that the purchaser Oregon.-Goodwin v. Rowe (1913) was not negligent in failing to dis- 67 Or. 1, 135 Pac. 171, Ann. Cas. 1915C, cover the mistake.

416. United States.-National Sav. Bank Texas.—Brunswig v. White (1888) v. Ward (1880) 100 U. S. 195, 25 L. ed. 70 Tex. 504, 8 S. W. 85; French v. De 621, infra, VI.

Moss (1916) - Tex. Civ. App. - 180 Alabama.—Tucker v. Graves (1920) S. W. 1105, 13 N. C. C. A. 63, infra, IV. 17 Ala. App. 602, 88 So. 40.

West Virginia.-Peter V. Johnson Illinois.Smith v. Hays (1887) 23 (Peters v. Jackson) (1901) 50 W. Va. Ill. App. 244, supra, I. d, 1.

644, 57 L.R.A. 428, 88 Am. St. Rep. 909, Indiana.—Howes v. Rose (1895) 13 41 S. E. 190, infra, V.

31 A.L.R.--85.

Wisconsin. Kennedy v. Plank he was given poison, without anything (1904) 120 Wis. 197, 97 N. W. 895, to inform him of that fact or in any supra, I. d, 1.

way to indicate that the drug was And CULLINAN v. TETRAULT (re- other than called for, and the plaintiff ported herewith) ante, 1330, concedes took it under the belief that it was the that a druggist who sells methyl drug asked for, is sufficient to warrant salicylate for essence of checkerberry a finding by the court, sitting as a is liable for the injurious conse- jury, that the defendant was guilty of quences, unless the purchaser is con- negligence in the sale, so as to render tributorily negligent; and for other him liable for the consequent injury. cases denying recovery against the Tucker v. Graves (1920) 17 Ala. App. druggist for mistake, see infra, VI. 602, 88 So. 40.

The plaintiff must show, however, Druggists or apothecaries in comthat the negligent act of the druggist pounding drugs and medicines are rewas the proximate cause of his in- quired not only to be skilful, but also jury. Fagan v. McRae (1918) 169 N. cautious and prudent, in view of the Y. Supp. 577.

consequences likely to follow any inThe negligence which must be es- attention on their part. Walton v. tablished to render a druggist liable Booth (1882) 34 La. Ann. 913, holding in consequence of a mistake as to the a druggist who, by mistake, sold sularticle sold is to be measured by his phate of zinc for salts, liable for the duty; and while this is only to exer- death of one to whom such poison was cise ordinary care, the phrase "ordi- administered under the belief that it nary care,” in reference to the busi- was the drug intended to be purness of a druggist, signifies “the high- chased. The court observes: "All est practicable degree of prudence, persons who deal with deadly poisons thoughtfulness, and vigilance and the are held to a strict accountability for most exact and reliable safeguards their use. The highest degree of care consistent with the reasonable con- known among practical men must be duct of the business, in order that used to prevent injury from the use of human life may not constantly be ex- such poisons. A druggist is undoubtposed to the danger flowing from the edly held to a special degree of resubstitution of deadly poisons for sponsibility, for the erroneous use of harmless medicines.” Willson poisons, corresponding with his suFaxon, Williams & Faxon (1913) 208 perior knowledge of the business." N. Y. 108, 47 L.R.A. (N.S.) 693, 101 N. The case of EDELSTEIN V. COOK (reE. 799, Ann. Cas. 1914D, 49.

ported herewith) ante, 1333, holds that If a druggist negligently sells the an allegation that a drug clerk, by wrong drug, which is subsequently mistake, sold and delivered a harmful taken by the plaintiff without fault on drug for the harmless one called for, her part or on the part of anyone and the customer innocently swalwhose fault is to be imputed to her, lowed it in the reliance and belief that such facts constitute a legal wrong, it was what he asked for, and was and it is unnecessary to inquire into caused suffering and pain thereby, the subsequent treatment of the case states a cause of action authorizing in order to determine that question, a recovery against the druggist. Brown v. Marshall (1882) 47 Mich. And in Kelly v. Ross (1912) 165 Mo. 576, 41 Am. Rep. 728, 11 N. W. 392, App. 475, 148 S. W. 1000, a druggist supra, holding that the druggist could was held liable for injuries suffered not defend against an action

a consequence of using a skin this ground, on the ground that the lotion purchased from him, which, it injury to the plaintiff was caused by was alleged, contained a poisonous the injurious consequences of giving substance. antidotes.

And in Norton v. Sewall (1870) 106 Evidence that the plaintiff desired Mass. 143, 8 Am. Rep. 298, it was held to purchase from the defendant, a that the right of action for the death druggist, paregoric, and that, instead, of one through the negligence of a

V.

on

as

druggist in selling laudanum for tinc- Allan v. State S. S. Co. (1892) 132 N.. ture of rhubarb, which was adminis- Y. 91, 15 L.R.A. 166, 28 Am. St. Rep. tered to the deceased under the belief 556, 30 N. E. 482. that it was rhubarb, survived to the And a druggist is not guilty of administrator of the deceased.

negligence in selling to customers In Meyer v. Flannery (1915) 18 proprietary medicines in packages and Ohio N. P. N. S. 361, where the plain- under the label of the proprietor or tiff died from the effects of cyanide of patentee, without making an analysis potassium, alleged to have been con- of the contents. West v. Emanuel tained in a package of salts which he (1901) 198 Pa. 180, 53 L.R.A. 329, 47 had purchased from the defendant, it Atl. 965, where the court affirmed a was held that a charge to the jury judgment of nonsuit in an action for that ordinary care required a person the death of one caused by taking engaged in the business of selling headache powders put up in packages drugs so to conduct his business as by an established manufacturer of not to cause injury to persons pur- proprietary medicines, which had been chasing from him on account of his purchased from the defendant drugfailure to give the drug asked for, and gist. if a poisonous drug was given in place

IV. Negligence of purchaser. of a drug asked for, and as a direct result the decedent died, the plaintiff

One cannot recover for the inwas entitled to recover, is not incon

jurious consequences following the sistent or erroneous as laying down

use of a harmful drug or article which two standards of care, as the jury un

a druggist, by mistake, has sold in derstood that the only question before

place of the article called for, if the them was whether or not the druggist

person injured is contributorily neglihad sold the drug which had poison

gent in failing to discover the mistake, in it.

or if such negligence can be imputed In Fagan v. McRae (1918) 169 N. Y.

to him. Gorman-Gammil Drug Co. Supp. 577, the evidence was that the

v. Watkins (1914) 185 Ala. 653, 64 So. druggist had delivered a medicine dif- 350; Rabe v. Sommerbeck (1895) 94 ferent from that ordered, and that the

Iowa, 656, 63 N. W. 458; Gwynn V. plaintiff became very sick after tak

Duffield (1883) 61 Iowa, 64, 47 Am. ing it, but as there was no evidence Rep. 802, 15 N. W. 594, on subsefrom which any inference could be

quent appeal in (1885) 66 Iowa, 708 drawn as to the effect of the medicine

55 Am. Rep. 266, 24 N. W. 523; except that the plaintiff's condition

CULLINAN V. TETRAULT (reported herewas made worse, the court held that with) ante, 1330. the burden on the plaintiff to show

Thus, CULLINAN V. TETRAULT (rethat the wrongful act of the defendant ported herewith) ante, 1330, holds that in giving the wrong medicine was the one attempting to purchase a harmless proximate cause of the injury had not

extract from a plainly incompetent been sustained.

boy in charge of a drug store, and who And it has been held that the mis

relies on his own sense of smell to takes of a ship's physician in giving

determine whether or not the article out medicines will not render the ship

offered is what he wants, is negligent owner liable where it has complied

so that he cannot hold the proprietor with the statute requiring it to employ

of the store liable in case he is ina competent physician, duly qualified, jured by the article received proving and supply him with the proper and to be a dangerous poison. necessary medicines, and furnish him And in Gorman-Gammil Drug Co. v. with a proper place to keep them, for, Watkins (Ala.) supra,

where the in doing these things, it has fulfilled plaintiff, who was familiar with the its duty to the passengers, and there- difference in appearance between comafter the physician is personally re- mon salt and Epsom salts, ordered sponsible for errors and mistakes oc- Epsom salts from a druggist, and curing in the use of the medicines. was by mistake given common salt,

a large dose of which he administered asked the defendant if he was taking to a cow without discovering the mis- a proper dose, and, the defendant take, causing its death, the court held answering in the affirmative, swalthat, as a matter of law, the death lowed it, the court, in reversing a of the cow was caused through the judgment for the plaintiff, held that gross negligence of the plaintiff in as the jar containing the poison was failing to discover the character of properly labeled, the jury should have the mineral which he administered to been instructed, without qualification, it, and no recovery could be had that if the plaintiff was guilty of negliagainst the druggist.

gence contributing to the injury, he And if two persons enter a drug could not recover. And on a subsestore to procure an extract for bever- quent appeal in (1885) 66 Iowa, 708, age purposes, and one undertakes to 55 Am. Rep. 286, 24 N. W. 523, the make the purchase, his negligence in court held that it was not necessary doing so is imputed to his compan- for the jury to find affirmatively that ion so that no recovery can be had the plaintiff was guilty of contribuagainst the druggist for the death of tory negligence in order to find such companion through a mistake as against him, but that the verdict to the article received, which proved should be against the plaintiff if they to be a deadly poison CULLINAN V. simply failed to find that he was TETRAULT (reported herewith).

guilty. The rule in Iowa seems to be that, But the contributory negligence of a in actions to recover for injuries suf- husband in purchasing drugs at the fered as a consequence of a mistake of request of his wife is not a bar in an a druggist in compounding a pre- action by the wife's administrator scription, the plaintiff must affirma- against the druggist for a mistake in tively show that in such prescription the drug sold which resulted in the he was free from contributory negli- death of the wife, as the husband in gence. Thus, in Rabe v. Sommerbeck making such purchase was not the (1895) 94 Iowa, 656, 63 N. W. 458, agent of the wife, so that his negliwhere the plaintiff alleged that he was gence could be imputed to her. Davis given a dangerous drug in place of v. Guarnieri (1887) 45 Ohio St. 470, whisky and quinine, which he asked 4 Am. St. Rep. 548, 15 N. E. 350. for, and as a result was seriously in- And one wholly unfamiliar with the jured, it was held that the plaintiff character and appearance of Rochelle had to aver and prove a want of negli- salts, who took, internally, “Roachgence on his part, contributing to the sault,” a poisonous insecticide which injury, and his failure to aver such the defendant's clerk had sold her for want of contributory negligence was a Rochelle salts, is not as a matter of ground for arrest of judgment, where law negligent in failing to read or the statute provided that if the peti- examine the label attached to the can, tion did not aver facts sufficient to en- which contained a statement of the title the plaintiff to any relief what- substance in the can, but not a stateever, advantage could be taken by mo- ment, as required by statute, that it tion in arrest of judgment, before the was poisonous. Hendry v. Judge & judgment was entered.

D. Drug Co. (1922) 211 Mo. App. And in Gwynn v. Duffield (1883) 61 166, 245 S. W. 358. The court stated Iowa, 64, 47 Am. Rep. 802, 15 N. W. that the defendant in selling the drug 594, where it appeared that the plain- impliedly warranted that it was the tiff ordered extract of dandelion, and article called for, and as the evidence in response thereto the defendant established that the plaintiff was not started to wrap up extract of bella- aware of the poisonous character of donna, a poison, and while he was so the article, but relied upon the defenddoing, the plaintiff went to the jar ant's warranty, the substitution of the from which the druggist had taken poisonous for the harmless article the same, thinking it dandelion, and, rendered the defendant liable to the helping himself to a portion thereof, plaintiff for the injury proximately resulting from its negligence

or

Evidence that the plaintiff sent for breach of duty.

acetanilid headache tablets and was And one who administers a power- sent a different kind, which she reful drug, prepared on a prescription, turned, demanding the tablets origito a child, without first consulting a nally sent for, and the defendant's physician, is not contributorily negli- clerk thereupon sent poisonous antigent so as to bar a recovery against septic tablets, which the plaintiff the druggist who prepared the pre- took thinking they were headache scription, for an injury to the child tablets, is sufficient to sustain a vercaused through the negligence of the dict of the jury for the plaintiff and druggist in failing properly to mix the the judgment of the court thereon, drug, where it appears that the drug, notwithstanding that the tablets had prepared on the same prescription, on them the raised word "Poison," and had previously been administered with that there was evidence, though consuccess. Coughlin v. Bradbury (1912) tradicted, that the clerk had written 109 Me. 571, 85 Atl. 294.

the word “Poison" on the box containThe fact that the substance which ing the tablets, it appearing that the the druggist had, by mistake, sent in tablets had been delivered to the place of the drug called for, acted in plaintiff while she was seated in a a queer or suspicious manner when dark room, and had been taken by mixed with other substance, is not, as her under the assumption that they a matter of law, sufficient to establish were such as she had requested. contributory negligence on the part of French v. De Moss (1915) Tex. Civ. the plaintiff, where he had no knowl- App. 180 S. W. 1105, 13 N. C. C. A. edge of the characteristics or reac- 63. tions of drugs when mixed, and had The mere fact that a package condealt with the defendant as a druggist taining a proprietary drug bears a over a long period of time, thereby ac- statement of the substances used in quiring the right to rely upon his compounding it does not, in the face ability as such. Fisher v. Golladay of an assurance that the drug contains (1889) 38 Mo. App. 531.

no harmful ingredients, put the asAnd where the plaintiff sent a bottle sumption of risk from its use on the labeled “Carbolic Acid” to be filled purchaser, unless he knows or apwith arnica, the fact that the bottle preciates the danger. Valmas Drug contained the original label when re- Co. v. Smoots (1920) 269 Fed. 356. turned to him was not, under the cir- In McVeigh v. Gentry (1902) 72 cumstances, sufficient to advise him App. Div. 598, 76 N. Y. Supp. 535, the that the bottle was in fact filled with court reversed the judgment in favor carbolic acid, so that he could not be of the plaintiff in an action against a said to be negligent in failing to dis- druggist for injuries consequent upon cover this fact before applying the an alleged mistake in selling carbolic substance to his person. Peterson v. acid for chloroform liniment, on the Westman (1903) 103 Mo. App. 672, 77 ground that the trial court was in S. W. 1015.

error in excluding the testimony as to And it has been held that one who whether the plaintiff had been intoxicalls for a particular remedy at a drug

cated at the time she used the supstore is not, as a matter of law, guilty posed liniment. It is to be observed, of contributory negligence in failing however, that the court holds that the to read the writing which the clerk testimony should have been admitted, puts on the package, and is not on that not as establishing the negligence of ground barred from a recovery against the plaintiff, but as establishing her the druggist for injuries consequent credibility as a witness. upon his mistake in giving a drug And in Keating v. Hull (1906) 78 other than that called for. Moran v. Conn. 719, 62 Atl. 661, 19 Am. Neg. Dake Drug Co. (1912) 134 N. Y. Supp. Rep. 105, it appears that the trial court 995, affirmed in (1913) 155 App. Div. found that the defendant, a druggist, 879, 139 N. Y. Supp. 1134, supra. was guilty of negligence in leaving

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