poison ordered by another customer, unlabeled, where the plaintiff might take it by mistake for her parcel of harmless drugs, but as the court also found the latter negligent in taking it, and awarded her only nominal damages, from which judgment she appealed, the supreme court was not called upon to question the finding as to the defendant's negligence, as no bill of exception was filed on this point.

Where a person who was accustomed to have a prescription filled in a small vial, which the druggist usually wrapped and placed on a shelf to be given to him as he returned from work, died from the effects of drinking a corrosive sublimate, supposing that it was his own prescription, and the evidence showed that the poison had been placed in a similar container to that used by the plaintiff, and on the same shelf, the court held that the right of recovery, if any, must rest upon the ground that the druggist's conduct in handling the package was negligent, and that he, in the exercise of ordinary care as a dealer, should have removed the wrapper before handing the package to the deceased, which could be defeated by a showing that the failure of the deceased to exercise ordinary care contributed to the mishap. The court decided that the deceased was responsible for the accident, holding that the evidence showed that he had failed to leave a container to have his prescription filled, and had, under the impression that his bottle was there and ready for use, seized the package containing the poison and drunk the contents without any examination thereof. Hackett v. Pratt (1893) 52 Ill. App. 346.

V. Purchaser through agent or third person.

The fact that a drug is purchased through a third person does not relieve a druggist from liability for the injurious consequences of the use thereof, when it appears that the drug sold was different from that called for, as the liability in such cases does not arise out of a privity of contract, but out of a duty imposed by law upon the

druggist. Norton v. Sewall (1870) 106 Mass. 143, 8 Am. Rep. 298; Peterson v. Westman (1903) 103 Mo. App. 672, 77 S. W. 1015; Davis v. Guarnieri (1887) 45 Ohio St. 470, 4 Am. St. Rep. 548, 15 N. E. 350; French v. De Moss (1915) Tex. Civ. App. 180 S. W. 1105, 13 N. C. C. A. 63; Peters v. Johnson (Peters v. Jackson) (1901) 50 W. Va. 644, 57 L.R.A. 428, 88 Am. St. Rep. 909, 41 S. E. 190; George v. Skivington (1869) L. R. 5 Exch. (Eng.) 1, 39 L. J. Exch. N. S. 8, 21 L. T. N. S. 495, 18 Week. Rep. 118.

Apothecaries, druggists, and all persons engaged in manufacturing, compounding, or selling drugs, poisons, or medicines are required to be extraordinarily skilful and to use the highest degree of care known to practical men to prevent injury from the use of such articles and compounds, so that where a merchant sells a poisonous drug for a medicine which is harmless (saltpeter for Epsom salts). by mistake, and it is taken for medicine without negligence by a third person, the seller is liable to such third person for damage resulting to him therefrom, notwithstanding the absence of privity of contract between the merchant and such third person. Peters v. Johnson (Peters v. Jackson) (1901) 50 W. Va. 644, 57 L.R.A. 428, 88 Am. St. Rep. 909, 41 S. E. 190. In commenting on the defendant's theory that, as the plaintiff had not purchased the drug from the defendant, there was no contract relation between the parties, and therefore no duty existing toward the plaintiff, a breach of which could give rise to a cause of action, the court states: “But the law will not sustain this line of reasoning. Can a druggist, from incompetency or negligence, sell to one person the wrong, poisonous article as medicine, which, being taken by such person lying sick in the purchaser's house, inflicts injury upon such third person. without any liability upon that druggist to answer to that third person? The law says he is liable to that third person. We know that drugs and medicines are kept in homes, and may, and probably will, be used by other persons than the one buying. Such is

the probable, usual case. Is it possiIs it possible that there is no reparation to this third person for irreparable harm to him from such incompetency or negligence? Considering the frightful dangers lurking in drugs, poisons, and medicines, this would be a disastrous rule."

In Davis v. Guarnieri (1887) 45 Ohio St. 470, 4 Am. St. Rep. 548, 15 N. E. 350, where the administrator was allowed to recover from a druggist for the death of his intestate caused by oil of bitter almonds, which the husband had purchased from a druggist as oil of sweet almonds, and which was labeled "Oil of Almonds," it was contended that there was no privity of contract between the druggist and the deceased that imposed any duty upon him toward her, and in answer the court stated: "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 fatal consequences of negligence in keeping, handling, and disposing of such dangerous drugs is a consideration to which no dealer can safely close his eyes. An imperative social duty requires of him that he use such precautions as are liable to prevent death or serious injury to those who may, in the ordinary course of events, be exposed to the dangers incident to the traffic in poisonous drugs."

In Minner v. Scherpich (1886) 5 N. Y. S. R. 851, the court refused to pass upon the question whether it was necessary for the administrator of one whose death was caused by strychnine made up into pills by the defendant, a druggist, in place of a harmless medicine, to show privity of contract between his intestate and the defendant, for the reason that there was sufficient evidence for the jury to find that there was a contract.

And in Peterson v. Westman (1903) 103 Mo. App. 672, 77 S. W. 1015, a druggist was held liable for the injurious effects of the application of carholic acid, with which the defendant had filled a bottle labeled “Carbolic

Acid," supplied by the plaintiff's son, who asked for arnica.

And in Quin v. Moore (1857) 15 N. Y. 432, where a druggist sold the mother of a minor morphine instead of quinine, for which she asked, it seems to have been admitted that the minor could have recovered for any injuries caused thereby, the only question being whether, if the morphine caused the death of the infant, his administrator would have an action against the druggist, which the court answered in the affirmative.

The same liability was held to exist for the negligent preparation of a physician's prescription, in McCubbin v. Hastings (1873) 27 La. Ann. 713, in which a minor child, as the heir of his mother, was allowed to recover damages for the death of the mother, caused by the husband administering to her medicine put up by the defendant according to a prescription, which contained poisonous substance not called for by the prescription.

And in George v. Skivington (1869) L. R. 5 Exch. (Eng.) 1, 39 L. J. Exch. N. S. 8, 21 L. T. N. S. 495, 18 Week. Rep. 118, where the declaration alleged that hair tonic prepared by the defendant, which the plaintiff had purchased for the use of his wife, was so unskilfully, negligently, and improperly compounded as to cause damage to the wife when used, the court on demurrer gave judgment for the plaintiff, Kelly, C. B., stating that the question was whether a chemist, in compounding an article sold for a particular purpose, and knowing of the purpose for which it is bought, is liable for unskilfulness and negligence in the manufacture of it, whereby the person using it was injured.

In Sutton v. Wood (1905) 120 Ky. 23, 85 S. W. 201, 8 Ann. Cas. 894, where the druggist had furnished strychnine in place of morphine, thereby causing the death of the plaintiff's intestate, who took the drug furnished under the belief that it was morphine, it was said that, while, if the nurse were negligent in administering the wrong drug, she would be liable in damages, that would not excuse the druggist who had been negligent in furnishing

the drug, but both would be liable as joint tort-feasors.

In Spry v. Kiser (1920) 179 N. C. 417, 102 S. E. 708, where the plaintiff's intestate died as a consequence of being given rancid cottonseed oil, which had been purchased from the defendant, who guaranteed it to be pure, sweet olive oil, the court reversed a judgment of nonsuit, holding that the plaintiff was entitled to nominal damages at the least, if he could show an actionable wrong, or the contract and its breach.

VI. Liability of wholesale druggist to purchaser from retailer.

A wholesale or manufacturing druggist is liable to a purchaser from a retail druggist for the injurious consequences of a mistake in the preparation of a drug sold by the retailer.

Thus, it has been held that a manufacturing druggist who sells belladonna, which, by mistake, was labeled "Dandelion" by his agent in preparing the drug for market, and which was sold for dandelion, is liable to a party injured thereby, although the drug so labeled had passed through the hands of several dealers before being purchased by the plaintiff. Thomas v. Winchester (1852) 6 N. Y. 397, 57 Am. Dec. 455, the court stating that the ordinary rule that no action could be maintained where there was no connection or privity between the parties did not apply to a dealer in poisonous drugs, for his duty arose out of the nature of the business and the danger to others incident to its mismanagement, and since nothing but mischief could be expected from sending poison falsely labeled into the market, the defendant was justly responsible for the probable consequences of such act. (Generally, as to liability of manufacturer or packer of defective article, including articles intended for human consumption, for injury to person or property of ultimate consumer who purchased from a middleman, see annotation in 17 A.L.R. 672, 686, et seq.)

And the court, by way of dictum, in National Sav. Bank v. Ward (1879) 100 U. S. 195, 25 L. ed. 621, states that a pharmacist or apothecary who, in compounding or selling medicines,

carelessly labels a poison as a harmless medicine and sends it into the market, is liable to all persons who without fault on their part are injured by the use thereof in consequence of the false label, for the rule of liability in such a case arises out of the duty which the law imposes on one to avoid acts in their nature dangerous to the lives of others, and not upon any rule of liability arising out of a contract or privity between the parties, and it is immaterial, therefore, whether the poisonous drug has passed through several intermediate sales before it reaches the hands of the person injured.

Anderson v. Meyer Bros. Drug Co. (1910) 149 Mo. App. 554, 130 S. W.829, was an action against a wholesale drug company by a purchaser from a retail druggist, for injuries sustained by the alleged negligence of the defendant in permitting poisonous matter to become mixed with a harmless drug which was carelessly sold to the retailer as pure and free from poison, but the decision against the plaintiff is based upon the fact that she had previously accepted satisfaction of her claim and signed a release of the defendant, the principal question discussed being as to whether the release was fraudulently obtained.

But it has been held that the sale of an article in itself harmless, and which becomes dangerous only by being used in combination with some other article, without the knowledge of the seller that it was to be so used, would not render him liable to a purchaser of the article from the original purchaser, who was injured while so using it, though by mistake the article actually sold was different from that which was intended to be sold. Davidson v. Nichols (1865) 11 Allen (Mass.) 514. In that case, a wholesale druggist, through mistake, delivered to the retail druggist sulphid of antimony for oxid of manganese, and the latter, without discovering the mistake, sold it for oxid of manganese to the plaintiff, who was injured in using the substance under the supposition that it was the article which he intended to purchase. The court

stated that it knew of no principle of law by which the seller of an article could be held liable, for mistakes in its nature or quality arising from his carelessness and negligence, to others than the immediate purchaser, where the article sold was in itself harmless, and there was no fraudulent or false representations, and no notice given him that the article was bought for a third person, or that it was intended to be used in combination with another substance which might cause injury to persons or property.

VII. Mistake as to effect of article sold.

In Valmas Drug Co. v. Smoots (1920) 269 Fed. 356, the defendant, a manufacturing druggist, was held liable for injuries resulting from the effects of zinc sulphate in an eyewash sold by it, which it advertised as a home treatment, there being testimony to the effect that zinc sulphate was not suitable for all cases of weak eyes, although the defendant testified that, before undertaking to manufacture the wash, he had consulted specialists and was told there was nothing about the tablets which would injure anyone's eyes. And the court stated that, while it was true that the package containing thereon a statement advising users of the presence of zinc sulphate, the user did not assume the risk from its use unless he knew or appreciated the danger therefrom, and as the label contained the defendant's assurance that the package contained no harmful ingredients, the plaintiff plainly could not be held negligent as a matter of law.

And in Blood Balm Co. v. Cooper (1889) 83 Ga. 457, 5 L.R.A. 612, 20 Am. St. Rep. 324, 10 S. E. 118, it was held that one who prepared a patent medicine, putting on the bottle directions as to doses to be taken, and sold it to druggists, was liable to a purchaser from the latter who was injured by taking it according to the directions, by reason of its containing a poisonous substance.

An see Goldberg v. Hegeman & Co. (N. Y.) supra, I. a, holding a druggist liable for the injurious effects of

a corrosive sublimate of abnormal strength, which he sold with knowledge that it was to be applied to the skin. And to the same effect is Horst v. Walter (N. Y.) and Goodwin v. Rowe (Or.) supra, I. d, 1. But where a druggist merely recommends a prescription not as his own, but as that of another, and is ordered to fill out such prescription, he is not liable for injuries caused by its use if he acted in good faith, and in the absence of any convincing evidence that there was want of skill in the act of compounding or any departure from the recipe either in selecting or combining the materials. Ray v. Burbank (1878) 61 Ga. 505, 54 Am. Rep. 103.

And in Young v. Parke, D. & Co. (1912) 49 Pa. Super. Ct. 29, it was held that a manufacturing chemist was not liable for the injurious effects of an experimental application, by a surgeon, of a drug manufactured by it, although its catalogue, which showed the ingredients of the drug and stated that it was chiefly intended for hypodermic use, also contained a reference to a magazine article by another surgeon, who claimed to have made successful use of the same drug in the manner adopted in the case at bar.

No liability attaches to a druggist for injuries to a customer for lack of instruction as to the safe method of handling phosphorus, where there was nothing connected with the transaction or previously known to the seller indicating that the would-be purchaser could not be safely intrusted with such substance, notwithstanding the letter ordering the phosphorus was incorrectly worded and spelled, that fact not being of itself sufficient to charge the vendor with notice that the would-be purchaser could not be intrusted with the article without instruction as to handling; at least, where the letter showed that, to a certain extent, the writer knew of the substance he was ordering. Gibson v. Torbert (1901) 115 Iowa, 163, 56 L.R.A. 98, 91 Am. St. Rep. 147, 88 N. W. 443.

VIII. Effect of statutes. Leaving a seventeen-year-old boy in charge of a drug store contrary to the provisions of a statute is negligence which will render the proprietor liable for injuries caused by his mistakes in attempting to sell drugs, although he was instructed not to sell drugs or medicines. CULLINAN V. TETRAULT (reported herewith) ante, 1330.

Counts in a declaration which in substance aver that the defendant druggist undertook to fill a prescription secured from a physician, which called for medicine for the eyes, harmless in its nature, and that the defendant furnished a different medicine than that called for in the prescription, which caused injuries when used, sufficiently states the cause of action, where the statute provides that every registered pharmacist, apothecary, or owner of a drug store shall be responsible for the quality of any drug, chemical, or medicine sold or dispensed, excepting those sold in the original packages of the manufacturer, or those known as proprietary. Martin v. Manning (1922) 207 Ala. 360, 92 So. 659.

And in a case where a druggist by mistake sold a poison in place of the drug called for, it was stated that as the statute imposed the duty on a druggist not to sell any substance usually denominated a poison, without having the word "Poison" plainly written or printed on the label attached, the failure so to label any box containing poison constitutes negligence per se, and renders the druggist liable for injuries resulting from such breach, for such statute is designed to protect the public against the injuries resulting from the unconscious use of a poisonous article. Hendry v. Judge & D. Drug. Co. (1921) 211 Mo. App. 166, 245 S. W. 358, supra.

In Campbell v. Brown (1911) 85 Kan. 527, 117 Pac. 1010, a druggist was held liable for the death of one who drank wood alcohol, which he had purchased from the defendant after an application in writing for grain alcohol to be used as a medicine, the court holding that it was immaterial whether deceased had purchased the

alcohol intending to use it as a beverage, as such fact would be no justification for selling wood alcohol not labeled, in violation of the statute requiring all poisons to be labeled.

In Fisher v. Golladay (1889) 38 Mo. App. 531, where the plaintiff sent his agent to purchase sulphuric ether from the defendant, and the agent was given sulphuric acid by the defendant's clerk, who testified that the agent asked for that article, but who failed to label it "Poison" as required by statute, the druggist was held liable for injuries suffered as a consequence of an application of the article furnished, under the belief that it was that which he had sent for. The defendant's liability was made to depend upon the failure of the clerk to label the drug "Poison," as required by statute, rather than upon the mistake in giving the wrong thing.

A druggist who holds himself out as the actual manufacturer of a patent medicine put up by a wholesaler with the retailer's name on the package is not entitled to the benefit of an exception in the statute, making druggists responsible for the quality of medicine sold by them, except those sold in the original packages of the manufacturer and those articles known as patent or proprietary medicines, and he may be found negligent in selling such medicine as a harmless preparation put up by himself, when it consists of a dangerous poison, where his only knowledge as to the contents was a statement by the manufacturer that it was similar to a well-known article, of the contents of which he was ignorant. 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.

And in Flynt v. Rightmeyer (1919) 107 Misc. 692, 177 N. Y. Supp. 842. where the plaintiff ordered bicarbonate of potassium, and received instead bichromate of potassium, a deadly poison, which caused the death of her husband, it was held that, in view of the Public Health Law providing that no druggist shall deliver any poison until he has satisfied himself that the purchaser is aware of its poisonous