using the medicine to ascertain what poisonous drugs it may contain. He has a right to rely upon the statement and recommendation of the proprietor, printed and published to the world; and if, thus relying, he takes the medicine, and is injured on account of some concealed drug of which he is unaware, the proprietor is not free from fault, and is liable. for the injury thereby sustained."

§ 626. Druggists' Liability in Selling Unbroken PackagesNegligence Basis of Liability.

Many drugs today are sold in the packages or bottles just as received from manufacturers, and while the manufacturer is a guarantor of their contents as he represents them to be, it is a very different thing with the druggist or retailer. The druggist relies upon the representations made to him by the manufacturers. If he has bought the drug from a reputable manufacturer, either directly or indirectly, under verbal or oral representations of its contents or as to what it is, and he, not knowing differently, sells it in reliance upon such representations, he will not be liable if it turns out to be a different drug, though the use of such drug produce serious injury to the person using it. There must be negligence upon the part of the druggist in the sale of a drug to render him liable, unless he expressly enters into an engagement of warranty. There is no liability in such cases, irrespective of the question of negligence or intentional wrong. Thus, where a druggist's clerk sold sulphate of zinc for epsom salts, Justice Cooley said: "That such an error might occur without fault on the part of the druggist or his clerks is readily supposable. He may have bought his drugs from a reputable dealer, in whose warehouse they may have been tampered with for the purpose of mischief. It is easy to suggest accidents after they come into his own possession, or wrongs by others, of which he would be ignorant, and against which a high degree of care would not give perfect protection. But how the mis

1 Blood Balm Co. v. Cooper, 83

Ga. 457, 10 S. E. 118, 5 L. R. A. 612, 20 Am. St. 324.

fortune occurs is unimportant if, under all the circumstances, the fact of occurrence is attributable to him as a legal fault. But we do not find that the authorities have gone so far as to dispense with actual negligence as a necessary element in the liability where a mistake has occurred.'

991

§ 627. Sale of Drugs from Broken Packages. Whatever the rule may be with reference to the sale of drugs in the original packages, it is a very different thing where the druggist breaks the package and retails it to the consumer. He then has an opportunity to examine and ascertain what the drug is that he is selling. The label of a harmless drug placed by reputable wholesale dealers on a poisonous drug purchased from them will not protect him from liability, even though he has failed to discover the mistake when handling the drug. Having the opportunity to ascertain the character of the drug sold, the least inattention or want of skill on his part to ascertain its properties or what it will render him liable to a person taking it, to his injury, who has relied upon the tacit representations put forth by the act of sale concerning the properties of the drug requested. "All persons who deal with deadly poisons, noxious and dangerous substances are held to a strict accountability." Thus, where a druggist furnished laudanum instead of rhubarb, and the laudanum was administered to the purchaser as rhubarb, resulting in his death, his administrator was awarded a judgment for damages because of his death. So a sale of oil of bitter almonds as oil of sweet almonds was held to render the druggist selling it liable for the fatal results produced in taking it; so of morphine

1 Brown v. Marshall, 47 Mich. 576, 41 Am. Rep. 728, 11 N. W. 392.

1 Howes v. Rose, 13 Ind. App. 674, 42 N. E. 303; Fleet v. Hollenkemp, 13 B. Mon. 219; Cunningham v. C. R. Pease House-Furnish

ing Co., 74 N. H. 435, 69 Atl. 120, 20 L. R. A. (N. S.) 236, 124 Am. St. 979.

2 Norton v. Sewall, 106 Mass. 143, 8 Am. Rep. 298.

3 Davis v. Guarnieri, 45 Ohio St. 470, 4 Am. St. 548, 15 N. E. 350.

sold as calomel, and of morphine for quinine; so in the case of a hair wash prepared at the request of a husband for his wife, which was so negligently and unskilfully prepared that it was unfit to be used for washing the hair. The use of strychnine for camphor, when filling a prescription, establishes negligence; or sulphate of zine for epsom salts: or belladonna for dandelion; or tartaric acid for Rochelle salts;10 or extract of belladonna for extract of dandelion;" or copperas instead of Glauber's salt;12 or undiluted aromatic. spirits of ammonia that is to be taken internally."

§ 628. Mislabeling Poisons or Medicines-Liability to Remote Purchaser.

"Pharmacists or apothecaries," said the Supreme Court of the United States, "who compound or sell medicines, if they carelessly label a poison as a harmless medicine and send it so labeled into the market, are liable to all persons who, without fault on their part, are injured by using it as such medicine in consequence of the false label, the rule being that the liability in such a case arises, not out of any contract or direct privity between the wrongdoer and the person injured, but out of the duty which the law imposes on him. to avoid acts in their nature dangerous to the lives of others. He is liable, therefore, though the poisonous drug with the label may have passed through many intermediate sales before it reached the hands of the person injured." Thus,

4 Smith v. Middleton, 112 Ky. 588, 66 S. W. 388, 56 L. R. A. 484, 99 Am. St. 308.

5 Quin v. Moore, 15 N. Y. 432. See also Peters v. Johnson, 50 W. Va. 644, 41 S. E. 190, 57 L. R. A. 428, 88 Am. St. 909; Minner v. Scherpich, 5 N. Y. St. Rep. 851; McCubbin v. Hastings, 27 La. Ann. 713.

6 George v. Skivington, L. R. 5 Exch. 1.

7 Minner v. Scherpich, 5 N. Y. St. Rep. 851.

where a husband purchased from a druggist as oil of sweet almonds, and which was labeled "Oil of Almonds," but which was in fact oil of bitter almonds, and his wife took the oil actually purchased, resulting in her death, it was held that the administrator of the wife's estate could recover, under the statute, damages for her death. It was contended that there was no such privity of contract between the druggist and the deceased as imposed upon him a duty toward her, but the court said in answer to this: "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 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 likely 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 incident in poisonous drugs."2 Consequently for a druggist to fill an order for calomel tablets with morphine and place them in a box labeled "Calomel," without giving notice of the fact, is such an act of gross negligence as renders him liable in punitive damages to the person injured or to his administrator.3 "We can not say," said the court in the case just cited, "that one holding himself out as competent to handle such drugs, and who does so, having rightful access to them, and relied upon by those dealing with him to exercise that high degree of caution and care called for by the peculiarly dangerous nature of this business, can be heard to say that his mistakes, by which he furnishes a customer the most deadly of drugs for those comparatively harmless, is not, in and of itself, gross negligence, and that of an aggravated form. In

Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455; Wise v. Morgan, 101 Tenn. 273, 48 S. W. 971, 44 L. R. A. 548, 4 Chic. L. J. Wkly. 69.

2 Davis v. Guarnieri, 45 Ohio St. 470, 15 N. E. 350, 4 Am. St. 548. 3 Smith v. Middleton, 112 Ky. 588, 66 S. W. 388, 56 L. R. A. 484, 99 Am. St. 308.

a business so hazardous, having to do so directly and frequently with the health and lives of so great a number of people, the highest degree of prudence for the safety of those dealing with such dealer is required. And that degree of care exacted of such dealer be required, also, of each servant intrusted by him with the conduct of his calling." Where a druggist was given a bottle labeled "Carbolic Acid," and was asked for arnica, but filled it with carbolic acid, and did not attach a new label, his negligence was held to be the proximate cause of the injury to one who used the carbolic acid supposing it to be arnica.5

§ 629. Failure to Label a Poison-Physician's Prescription. Statutes have been enacted in almost every State requiring poisons to be labeled as a warning to all persons coming in contact with them, and a failure to comply with these statutes is such an act of negligence as will render liable those whose duty it is to place such labels upon the poisons, if by such omission a person be injured. A statute of this character, however, does not apply to medicines compounded upon the prescription of a physician, though it contains poison. And where a druggist negligently failed to label a bottle poison, his negligence was held to be the proximate cause of the death of an irresponsible child who got the bottle from the mantelpiece where the mother had left it, not knowing of its dangerous character, and drank the contents, resulting in its death. The mother's negligence in leaving the bottle accessible to the child was not such an intervening negligence on the part of a responsible agent as broke the chain of causation, and became itself the judicial cause. If the mother had been aware of the poisonous character of the substance it might have been otherwise, and if the bottle had been labeled "poison" she would thereby have been admonished of its dangerous character.1 An averment in a complaint

4 Smith v. Middleton, supra. 5 Peterson v. Westmann, 103 Mo. App. 672, 77 S. W. 1015, distinguishing Fowler v. Randall, 99 Mo. App. 407, 73 S. W. 931.

1 Wise v. Morgan, 101 Tenn. 273, 48 S. W. 971, 44 L. R. A. 548; Horst v. Walter, 53 N. Y. Misc. Rep. 591, 103 N. Y. Supp. 750.