to be alert to avoid mistakes, and in such case he should take all reasonable precaution to be certain that he does not sell one thing when another is called for. Tombari V. Connors (Conn.) supra, II. a.

An obligation rests upon a druggist to fill a prescription accurately, and, if he fails to do so, he is responsible for the evil consequences; it must appear, however, in order to find him negligent, that the prescription was legibly written so that with ordinary care he could have known what it was. McClardy v. Chandler (Ohio) supra.

c. Improperly mixing ingredients. In Butterfield v. Snellenburg (1911) 231 Pa. 88, 79 Atl. 980, the defendant was held liable for injuries suffered by a customer as a consequence of taking a dose of aromatic spirits of ammonia which had been improperly stirred or mixed by the defendant's clerk, in charge of the drug department of a general store, under the belief that the clerk had prepared a harmless dose of the drug which was called for.

And it has been held that an unregistered druggist will be liable for the injurious effects of a drug prepared by him, where, in filling a prescription, he negligently failed properly to mix the ingredients of the compound so as to distribute them evenly throughout the mixture. Coughlin v. Bradbury (1912) 109 Me. 571, 85 Atl. 294.

III. Sale of prepared drug or other
article.

The courts are in accord in holding a druggist liable for a mistake in selling a drug or other article other than that called for by the purchaser, in the absence of evidence negativing negligence, provided that the purchaser was not negligent in failing to discover the mistake.

United States.-National Sav. Bank v. Ward (1880) 100 U. S. 195, 25 L. ed. 621, infra, VI.

Alabama.-Tucker v. Graves (1920) 17 Ala. App. 602, 88 So. 40.

Illinois. Smith v. Hays (1887) 23 Ill. App. 244, supra, I. d, 1.

Indiana.-Howes v. Rose (1895) 13 31 A.L.R.--85.

Massachusetts. Norton v. Sewall (1870) 106 Mass. 143, 8 Am. Rep. 298. Michigan. Brown v. Marshall (1882) 47 Mich. 576, 41 Am. Rep. 728, 11 N. W. 392, supra, I. a. Missouri. Fisher v. Golladay (1889) 38 Mo. App. 531, and Peterson v. Westman (1903) 103 Mo. App. 672, 77 S. W. 1015, infra, IV.; Kelly v. Ross (1912) 165 Mo. App. 475, 148 S. W. 1000; Hendry v. Judge & D. Drug Co. (1922) 211 Mo. App. 116, 245 S. W. 358, infra, IV.

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

New York.-Thomas v. Winchester (1852) 6 N. Y. 397, 57 Am. Dec. 455, infra, VI.; Quin v. Moore (1857) 15 N. Y. 432, infra V.; Horst v. Walter (1907) 53 Misc. 591, 103 N. Y. Supp. 750, supra, I. d, 1; Willson v. Faxon, Williams & Faxon (1913) 208 N. Y. 108, 47 L.R.A.(N.S.) 693, 101 N. E. 799, Ann. Cas. 1914D, 49; Moran v. Dake Drug Co. (1912) 134 N. Y. Supp. 995, affirmed in (1913) 155 App. Div. 879, 139 N. Y. Supp. 1134, supra, I. d, 2; Flynt v. Rightmeyer (1919) 107 Misc. 692, 177 N. Y. Supp. 842, infra, VIII.

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

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

Wisconsin. Kennedy v. Plank (1904) 120 Wis. 197, 97 N. W. 895, supra, I. d, 1.

And CULLINAN V. TETRAULT (reported herewith) ante, 1330, concedes that a druggist who sells methyl salicylate for essence of checkerberry is liable for the injurious consequences, unless the purchaser is contributorily negligent; and for other cases denying recovery against the druggist for mistake, see infra, VI.

The plaintiff must show, however, that the negligent act of the druggist was the proximate cause of his injury. Fagan v. McRae (1918) 169 N. Y. Supp. 577.

The negligence which must be established to render a druggist liable in consequence of a mistake as to the article sold is to be measured by his duty; and while this is only to exercise ordinary care, the phrase "ordinary care," in reference to the business of a druggist, signifies "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 medicines." Willson Faxon, Williams & Faxon (1913) 208 N. Y. 108, 47 L.R.A. (N.S.) 693, 101 N. E. 799, Ann. Cas. 1914D, 49.

V.

If a druggist negligently sells the wrong drug, which is subsequently taken by the plaintiff without fault on her part or on the part of anyone whose fault is to be imputed to her, such facts constitute a legal wrong, and it is unnecessary to inquire into the subsequent treatment of the case in order to determine that question. Brown v. Marshall (1882) 47 Mich. 576, 41 Am. Rep. 728, 11 N. W. 392, supra, holding that the druggist could not defend against an action on this ground, on the ground that the injury to the plaintiff was caused by the injurious consequences of giving antidotes.

Evidence that the plaintiff desired to purchase from the defendant, a druggist, paregoric, and that, instead,

he was given poison, without anything to inform him of that fact or in any way to indicate that the drug was other than called for, and the plaintiff took it under the belief that it was the drug asked for, is sufficient to warrant a finding by the court, sitting as a jury, that the defendant was guilty of negligence in the sale, so as to render him liable for the consequent injury. Tucker v. Graves (1920) 17 Ala. App. 602, 88 So. 40.

Druggists or apothecaries in compounding drugs and medicines are required not only to be skilful, but also cautious and prudent, in view of the consequences likely to follow any inattention on their part. Walton v. Booth (1882) 34 La. Ann. 913, holding a druggist who, by mistake, sold sulphate of zinc for salts, liable for the death of one to whom such poison was administered under the belief that it was the drug intended to be purchased. The court observes: "All persons who deal with deadly poisons are held to a strict accountability for their use. The highest degree of care known among practical men must be used to prevent injury from the use of such poisons. A druggist is undoubtedly held to a special degree of responsibility, for the erroneous use of poisons, corresponding with his superior knowledge of the business."

The case of EDELSTEIN v. Cook (reported herewith) ante, 1333, holds that an allegation that a drug clerk, by mistake, sold and delivered a harmful drug for the harmless one called for, and the customer innocently swallowed it in the reliance and belief that it was what he asked for, and was caused suffering and pain thereby, states a cause of action authorizing a recovery against the druggist.

And in Kelly v. Ross (1912) 165 Mo. App. 475, 148 S. W. 1000, a druggist was held liable for injuries suffered as a consequence of using a skin lotion purchased from him, which, it was alleged, contained a poisonous substance.

And in Norton v. Sewall (1870) 106 Mass. 143, 8 Am. Rep. 298, it was held that the right of action for the death of one through the negligence of a

druggist in selling laudanum for tincture of rhubarb, which was administered to the deceased under the belief that it was rhubarb, survived to the administrator of the deceased.

In Meyer v. Flannery (1915) 18 Ohio N. P. N. S. 361, where the plaintiff died from the effects of cyanide of potassium, alleged to have been contained in a package of salts which he had purchased from the defendant, it was held that a charge to the jury that ordinary care required a person engaged in the business of selling drugs so to conduct his business as not to cause injury to persons purchasing from him on account of his failure to give the drug asked for, and if a poisonous drug was given in place. of a drug asked for, and as a direct result the decedent died, the plaintiff was entitled to recover, is not inconsistent or erroneous as laying down two standards of care, as the jury understood that the only question before them was whether or not the druggist had sold the drug which had poison in it.

In Fagan v. McRae (1918) 169 N. Y. Supp. 577, the evidence was that the druggist had delivered a medicine different from that ordered, and that the plaintiff became very sick after taking it, but as there was no evidence from which any inference could be drawn as to the effect of the medicine except that the plaintiff's condition was made worse, the court held that the burden on the plaintiff to show that the wrongful act of the defendant in giving the wrong medicine was the proximate cause of the injury had not been sustained.

And it has been held that the mistakes of a ship's physician in giving out medicines will not render the shipowner liable where it has complied with the statute requiring it to employ a competent physician, duly qualified, and supply him with the proper and necessary medicines, and furnish him with a proper place to keep them, for, in doing these things, it has fulfilled its duty to the passengers, and thereafter the physician is personally responsible for errors and mistakes occuring in the use of the medicines.

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.

And a druggist is not guilty of negligence in selling to customers proprietary medicines in packages and under the label of the proprietor or patentee, without making an analysis of the contents. West v. Emanuel (1901) 198 Pa. 180, 53 L.R.A. 329, 47 Atl. 965, where the court affirmed a judgment of nonsuit in an action for the death of one caused by taking headache powders put up in packages by an established manufacturer of proprietary medicines, which had been purchased from the defendant druggist.

IV. Negligence of purchaser.

One cannot recover for the injurious consequences following the use of a harmful drug or article which a druggist, by mistake, has sold in place of the article called for, if the person injured is contributorily negligent in failing to discover the mistake, or if such negligence can be imputed to him. Gorman-Gammil Drug Co. v. Watkins (1914) 185 Ala. 653, 64 So. 350; Rabe v. Sommerbeck (1895) 94 Iowa, 656, 63 N. W. 458; Gwynn v. Duffield (1883) 61 Iowa, 64, 47 Am. Rep. 802, 15 N. W. 594, on subsequent appeal in (1885) 66 Iowa, 708 55 Am. Rep. 266, 24 N. W. 523; CULLINAN V. TETRAULT (reported herewith) ante, 1330.

Thus, CULLINAN V. TETRAULT (reported herewith) ante, 1330, holds that one attempting to purchase a harmless extract from a plainly incompetent boy in charge of a drug store, and who relies on his own sense of smell to determine whether or not the article offered is what he wants, is negligent so that he cannot hold the proprietor of the store liable in case he is injured by the article received proving to be a dangerous poison.

And in Gorman-Gammil Drug Co. v. Watkins (Ala.) supra, where the plaintiff, who was familiar with the difference in appearance between common salt and Epsom salts, ordered Epsom salts from a druggist, and was by mistake given common salt,

a large dose of which he administered to a cow without discovering the mistake, causing its death, the court held that, as a matter of law, the death of the cow was caused through the gross negligence of the plaintiff in failing to discover the character of the mineral which he administered to it, and no recovery could be had against the druggist.

And if two persons enter a drug store to procure an extract for beverage purposes, and one undertakes to make the purchase, his negligence in doing so is imputed to his companion so that no recovery can be had against the druggist for the death of such companion through a mistake as to the article received, which proved to be a deadly poison CULLINAN V. TETRAULT (reported herewith).

The rule in Iowa seems to be that, in actions to recover for injuries suffered as a consequence of a mistake of a druggist in compounding a prescription, the plaintiff must affirmatively show that in such prescription he was free from contributory negligence. Thus, in Rabe v. Sommerbeck (1895) 94 Iowa, 656, 63 N. W. 458, where the plaintiff alleged that he was given a dangerous drug in place of whisky and quinine, which he asked for, and as a result was seriously injured, it was held that the plaintiff had to aver and prove a want of negligence on his part, contributing to the injury, and his failure to aver such want of contributory negligence was a ground for arrest of judgment, where the statute provided that if the petition did not aver facts sufficient to entitle the plaintiff to any relief whatever, advantage could be taken by motion in arrest of judgment, before the judgment was entered.

And in Gwynn v. Duffield (1883) 61 Iowa, 64, 47 Am. Rep. 802, 15 N. W. 594, where it appeared that the plaintiff ordered extract of dandelion, and in response thereto the defendant started to wrap up extract of belladonna, a poison, and while he was so doing, the plaintiff went to the jar from which the druggist had taken the same, thinking it dandelion, and, helping himself to a portion thereof,

asked the defendant if he was taking a proper dose, and, the defendant answering in the affirmative, swallowed it, the court, in reversing a judgment for the plaintiff, held that as the jar containing the poison was properly labeled, the jury should have been instructed, without qualification, that if the plaintiff was guilty of negligence contributing to the injury, he could not recover. And on a subsequent appeal in (1885) 66 Iowa, 708, 55 Am. Rep. 286, 24 N. W. 523, the court held that it was not necessary for the jury to find affirmatively that the plaintiff was guilty of contributory negligence in order to find against him, but that the verdict should be against the plaintiff if they simply failed to find that he was guilty.

But the contributory negligence of a husband in purchasing drugs at the request of his wife is not a bar in an action by the wife's administrator against the druggist for a mistake in the drug sold which resulted in the death of the wife, as the husband in making such purchase was not the agent of the wife, so that his negligence could be imputed to her. Davis v. Guarnieri (1887) 45 Ohio St. 470, 4 Am. St. Rep. 548, 15 N. E. 350.

And one wholly unfamiliar with the character and appearance of Rochelle salts, who took, internally, "Roachsault," a poisonous insecticide which the defendant's clerk had sold her for Rochelle salts, is not as a matter of law negligent in failing to read or examine the label attached to the can, which contained a statement of the substance in the can, but not a statement, as required by statute, that it was poisonous. Hendry v. Judge & D. Drug Co. (1922) 211 Mo. App. 166, 245 S. W. 358. The court stated that the defendant in selling the drug impliedly warranted that it was the article called for, and as the evidence established that the plaintiff was not aware of the poisonous character of the article, but relied upon the defendant's warranty, the substitution of the poisonous for the harmless article rendered the defendant liable to the plaintiff for the injury proximately

And one who administers a powerful drug, prepared on a prescription, to a child, without first consulting a physician, is not contributorily negligent so as to bar a recovery against the druggist who prepared the prescription, for an injury to the child caused through the negligence of the druggist in failing properly to mix the drug, where it appears that the drug, prepared on the same prescription, had previously been administered with success. Coughlin v. Bradbury (1912) 109 Me. 571, 85 Atl. 294.

The fact that the substance which the druggist had, by mistake, sent in place of the drug called for, acted in a queer or suspicious manner when mixed with other substance, is not, as a matter of law, sufficient to establish contributory negligence on the part of the plaintiff, where he had no knowledge of the characteristics or reactions of drugs when mixed, and had dealt with the defendant as a druggist over a long period of time, thereby acquiring the right to rely upon his ability as such. Fisher v. Golladay (1889) 38 Mo. App. 531.

And where the plaintiff sent a bottle labeled "Carbolic Acid" to be filled with arnica, the fact that the bottle contained the original label when returned to him was not, under the circumstances, sufficient to advise him that the bottle was in fact filled with carbolic acid, so that he could not be said to be negligent in failing to discover this fact before applying the substance to his person. Peterson v. Westman (1903) 103 Mo. App. 672, 77 S. W. 1015.

And it has been held that one who calls for a particular remedy at a drug store is not, as a matter of law, guilty of contributory negligence in failing to read the writing which the clerk puts on the package, and is not on that ground barred from a recovery against the druggist for injuries consequent upon his mistake in giving a drug other than that called for. Moran v. Dake Drug Co. (1912) 134 N. Y. Supp. 995, affirmed in (1913) 155 App. Div. 879, 139 N. Y. Supp. 1134, supra.

Evidence that the plaintiff sent for acetanilid headache tablets and was sent a different kind, which she returned, demanding the tablets originally sent for, and the defendant's clerk thereupon sent poisonous antiseptic tablets, which the plaintiff took thinking they were headache tablets, is sufficient to sustain a verdict of the jury for the plaintiff and the judgment of the court thereon, notwithstanding that the tablets had on them the raised word "Poison," and that there was evidence, though contradicted, that the clerk had written the word "Poison" on the box containing the tablets, it appearing that the tablets had been delivered to the plaintiff while she was seated in a dark room, and had been taken by her under the assumption that they were such as she had requested. French v. De Moss (1915) - Tex. Civ. App., 180 S. W. 1105, 13 N. C. C. A. 63.

The mere fact that a package containing a proprietary drug bears a statement of the substances used in compounding it does not, in the face of an assurance that the drug contains no harmful ingredients, put the assumption of risk from its use on the purchaser, unless he knows or appreciates the danger. Valmas Drug Co. v. Smoots (1920) 269 Fed. 356.

In McVeigh v. Gentry (1902) 72 App. Div. 598, 76 N. Y. Supp. 535, the court reversed the judgment in favor of the plaintiff in an action against a druggist for injuries consequent upon an alleged mistake in selling carbolic acid for chloroform liniment, on the ground that the trial court was in error in excluding the testimony as to whether the plaintiff had been intoxicated at the time she used the supposed liniment. It is to be observed, however, that the court holds that the testimony should have been admitted, not as establishing the negligence of the plaintiff, but as establishing her credibility as a witness.

And in Keating v. Hull (1906) 78 Conn. 719, 62 Atl. 661, 19 Am. Neg. Rep. 105, it appears that the trial court

found that the defendant, a druggist, was guilty of negligence in leaving