tion alleged, in substance, that the defendant prepared, put up in packages, and sold to the trade certain mince meat, which, in the due course of business, passed through the hands of a wholesaler, a retail dealer, and finally was made into a pie, after eating of which plaintiff's testator died; that the defendant negligently and improperly prepared and manufactured the mince meat in question; that as a result the same became unfit for food, and poisonous and destructive to human life when used as food; and that plaintiff's testator, lawfully partaking of the same, was poisoned, and lost his life in consequence thereof. There was no averment of a scienter, the declaration counting upon the negligence alone. It was held that this set forth a good cause of action, under a statute permitting a recovery for the death of a person caused by the wrongful act or omission of another. another case a vendor of spoiled bacon was held liable. He had sold the meat to the plaintiff's butcher, and the court said, if the vendor was negligent in selling meats that were dangerous to those who ate them, he would be liable for the consequences of his act if he knew the meats to be dangerous, or by proper care on his part could have known their condition.3 In a Massachusetts case occurs a dictum to the effect that a caterer who furnished improper and unwholesome food, by which the guests of his customers were made sick, would be liable to such guests, though he had no direct contractual connection with them. This dictum was followed as an authority in a subsequent case." But in an Arkansas relate to the sale of food. Meshbesher v. Channellene Oil & Mfg. Co., 107 Minn. 104, 119 N. W. 428, 131 Am. St. 441; Barney v. Burstenbinder, 7 Lans 224. See Carter v. Harden, 78 Me. 528. 2 Salmon v. Libby, McNeil & Libby, 219 Ill. 421, 76 N. E. 573. The question of the liability of a packer to persons not in privity of contract with him was not discussed, as the specific objection to the declaration was that it failed PURE FOOD-51. In to state the particular negligence complained of. 3 Craft v. Parker W. & Co., 96 Mich. 245, 55 N. W. 812, 21 L. R. A. 139. But the court refrained from any discussion of the question of the manufacturer's liability to third persons. 4 Bishop v. Weber, 139 Mass. 411, 1 N. E. 154, 52 Am. Rep. 715. 5 Lebourdais v. Vitrified Wheel Co., 194 Mass. 341, 80 N. E. 482. case a recovery was refused to a purchaser from a retailer of canned meat against the packer of it, upon the ground that, as the goods were purchased from a middleman, there was no privity of contract between the consumer and the packer, and that, therefore, no warranty of wholesomeness passed with the property from the packer to the consumer through the latter's vendor. The question of the purchaser's liability for negligence in the preparation of the food was altogether ignored by the court, though the complaint contained an averment of such negligence." In the Massachusetts case already cited, the court said: "The liability does not rest so much upon an implied contract as upon a violated or neglected duty voluntarily assumed. Indeed, when the guests are entertained without pay, it would be hard to establish an implied contract with each individual. The duty, however, arises from the relation of the caterer to the guests. The latter have a right to assume that he will furnish for their consumption provisions which are not unwholesome and injurious through any neglect on his part. The furnishing of provisions which endanger human life or health stands upon the same ground as the administering of improper medicines, from which a liability springs, irrespective of any question of privity of contract between the parties."" The same rule has been applied to a sale of a drug which turned out to be a poison, and which a person not a party to the contract of purchase took, to his injury. So where a druggist, at the request of a purchaser, put some croton oil on candy that had been purchased from him, knowing, or having cause to believe, that the purchaser intended. to use the candy as a trick, he was held liable to a criminal prosecution for assault and battery. 6 Nelson v. Armour Packing Co., 76 Ark. 352, 90 S. W. 288, 6 A. & E. Ann. Cas. 237; Davidson V. Nichols, 11 Allen 514. 7 Bishop v. Weber, supra. 8 Peters v. Johnson, 50 W. Va. 644, 41 S. E. 190, 57 L. R. A. 428, 88 Am. St. 909; Quinn v. What has been said is Moore, 15 N. Y. 432; Willson v. Faxon, 63 N. Y. App. 561, 117 N. Y. Supp. 361. See also Minner v. Scherpich, 5 N. Y. St. Rep. 851; Blood Balm Co. v. Cooper, 83 Ga. 457, 10 S. E. 118, 5 L. R. A. 612, 20 Am. St. 324. 9 State v. Moore, 121 N. C. 677, especially true as to instances of a sale to a husband where he purchases it for his wife1o or a master who procures medicine for his servant.11 28 S. E. 547, 43 L. R. A. 861, 61 Am. St. 686. "The manufacturer or dealer who puts out, sells, and delivers, without notice to others of its dangerous qualities, an article which invites a certain use, and which article is not inherently dangerous, but which, by reason of negligent construction, he knows to be imminently dangerous to life or limb, or is manifestly and not apparently dangerous when used as it is intended to be used, is liable to any person who suffers an injury therefrom, which injury might have been reasonably anticipated. So a manufacturer or vendor putting out and selling articles inherently dangerous, such as explosions or poisons, without notice to others of their dangerous nature or qualities, or with a misleading notice, or negligently in any other way, is liable for any injury to any third person which might have been reasonably foreseen by the manufacturer or dealer in the exercise of ordinary care. So a manufacturer or vendor making and selling an article intended to preserve or af fect human life is liable to third persons, who sustain injury caused by his negligence in preparing, compounding, labeling, or directing the use of such articles, if such injury to others might have been reasonably foreseen in the exercise of ordinary care. The reason for these rules is apparent. The manufacturer or vendor should have no immunity from duties common to all, merely because he is a manufacturer or vendor. At the same time, there is in the common law no authority for imposing special duties upon him by reason of any privity between him and the vendee of his vendee, except in the instances mentioned, which may be regarded as occasions of a general duty toward the public to whom the wares are offered, or as exceptions to the rule of non-liability. If a general rule of statute or common law requires him to take precautions to protect the public against a dangerous substance by proper designation of the thing manufactured or sold, he owes a duty to the public so to do, and for failure in that regard he is liable for the consequences reasonably to be anticipated." Hasbrook V. Armour & Co. (Wis.), 112 N. W. 157, 23 L. R. A. (N. S.) 876. Consequently it was held that a manufacturer who sells to the trade is not liable in tort for an injury to a consumer by a needle which is in some way imbedded in a cake of soap without his knowledge, which cake is sold with others in the usual way to the dealer; and it is immaterial that purity of the product was guaranteed. Nor is the retailer liable. 10 Davis v. Guanieri, 34 La. Ann. 913. 11 Norton v. Sewall, 106 Mass. 143, 8 Am. Rep. 298. § 624. Patented Medicines. In an early English case there is an instruction that if a druggist sold a compound, not knowing for whom it was intended, he would not be liable to the person who, not being the purchaser, used it and was injured. A druggist is not required to analyze the contents of each bottle or package of a patent or proprietary medicine which he gets from a manufacturer. If he delivers it to a customer calling for it with the label of the proprietor or patentee on it, he is not negligent. But the maker of the patented medicine is liable to any one who purchases and uses it in ignorance of its poisonous character.3 § 625. Prescription Placed upon Patent Medicine. Where a prescription is placed upon a patented medicine, giving the amount of the medicine that should be taken at a dose, then any one following the directions, to his injury, may maintain an action against the manufacturer, though the medicine has passed through the hands of several dealers between him and such manufacturer. This question has been discussed by the Supreme Court of Georgia. The medicine there involved was a patented article put up in a bottle, upon which was a prescription. "The liability of the plaintiff in error," said Justice Blandford, speaking for the court, "to the person injured arises, not by contract, but for a wrong committed by the proprietor in the prescription and directions as to the dose that should be taken. We can see no difference whether the medicine was directly sold to the defendant in error by the proprietor or by an intermediate party to whom the proprietor had sold it in the first instance for the purpose of being sold again. It was put upon the market by the proprietor, not alone for the use of druggists to whom they might sell it, but to be used by the public in general, who might need the same for the cure of certain dis 1 George v. Skivington, 5 Exch. 1. 2 West v. Emanuel, 198 Pa. 180, 47 Atl. 965. 3 Blood Balm Co. v. Cooper, 83 Ga. 457, 10 S. E. 118, 5 L. R. A. 612, 20 Am. St. 324. eases, for which the proprietor set forth in his label the same was adapted. This was the same thing as if the proprietor himself had sold this medicine to the defendant in error, with his instructions and directions as to how the same should be taken. In the cases cited by the plaintiff in error there is no case in which the proprietor prescribed the doses and quantities to be taken of the medicine sold by him. If this medicine contained the iodide of potassium in sufficient quantity to produce the injurious consequences complained of to the defendant in error, and if the same was administered to him either by himself or any other person as prescribed in the label accompanying the medicine, he could, in our judgment, recover for any injury he may have sustained on account of the poisonous effect thereof. It was wrong on the part of the proprietor to extend to the public generally an invitation to take the medicine in quantities sufficient to injure and damage persons who might take it. A medicine which is known to the public as being dangerous and poisonous if taken in large quantities may be sold by the proprietor to druggists and others, and if any person without more should purchase and take the same so as to cause injury to himself, the proprietor would not be liable. But if the contents of a medicine are concealed from the public generally, and the medicine is prepared by someone who knows its contents, and he sells the same, recommending it for certain diseases, and prescribing the mode in which it shall be taken, and injury is thereby sustained by the person taking the same, the proprietor would be liable for the damages thus sustained. These proprietary or patent medicines are secret, or intended by the proprietors to be secret, as to their contents. They expect to derive a profit from such secrecy. They are, therefore, liable for all injuries sustained by any one who takes their medicines in such quantities as may be prescribed by them. There is no way for a person who uses the medicine to ascertain what its contents are, and in this case the contents were only ascertained after an analysis made by a chemist, which would be very inconvenient and expensive to the public; nor would it be the duty of a person |