that the defendant negligently put up and sold a poisonous drug instead of a harmless medicine called for, authorizes proof that such drug was labeled "poison, as a statute required. But where a druggist sold to an intoxicated man poison, and unlawfully neglected to put upon the package a label of its contents as the statute required, and the purchaser, while still intoxicated, drank the poison, and died from the effects, it was held that no action lay against the druggist, for the proximate cause of his death was the act of the decedent in administering the poison to himself, and not of the druggist in selling it without a label. But it is negligence per se to sell a package of poison unlabeled when a statute requires it to be labeled; yet it is incumbent upon the plaintiff to show that the violation of the statute was the proximate cause of the death; and the question whether the defendant's negligence was the proximate cause of the injury is one for the jury. A druggist who was not a registered pharmacist sold to the deceased's servant more than five grains of strychnine without placing a label on the outside. of the package designating the name of the poison and the name of an antidote, and without making any inquiry as to the purpose for which the strychnine was to be used, as a statute required. A nurse gave the deceased strychnine from the package, supposing it to be morphine, and the deceased immediately thereafter died from its effect. It was held that such facts entitled the deceased's administrator to recover damages from the druggist for a violation of this statute. The plaintiff proved a cause of action under the statute, as well as for defendant's negligence in the sale of the poison, independent of the statute, and it was held error to charge the jury that if the defendant, in selling the poison, did not also Fisher v. Golladay, 38 Mo. App. 531.

2 Davis v. Guarnieri, 45 Ohio St. 470, 15 N. E. 350, 4 Am. St. 548. In this case it was held not error for the court in its charge to allude to the statute making it unlawful to sell a poisonous drug without labeling it "Poison." See

3 Ronker v. St. John, 21 Ohio Cir. Ct. Rep. 39, 11 Ohio C. D. 434.

4 Burk V. Creamery Package Mfg. Co., 126 Iowa 730, 102 N. W. 793, 106 Am. St. 377.

comply with the statute, and plaintiff's decedent came to her death by reason of the failure to do so, the plaintiff was entitled to recover."

§ 630. Implied Representation that Drug Requested for a Particular Purpose is Fit for Such Purpose.

If a person applies to a druggist for a solution or medicine for a particular purpose, and the druggist furnishes it, there is an implied representation on the part of the druggist that the drug or solution is fit for the particular purpose. Thus, where plaintiff applied to a druggist for a solution to wash a wound, and the druggist furnished a solution containing 86 percent of carbolic acid, it was held that he was liable for the injuries sustained in using the solution for a wash, and that the plaintiff was justified in using the solution without further inquiry.1

§ 631. Implied Representation that Drug Delivered is the Drug Called for.

It scarcely needs to be stated that, if a person goes into a drugstore and makes a request for a particular drug, and the druggist in compliance, apparently, with that request, delivers him a drug, there is an implied representation on the part of the druggist that the drug delivered is the drug requested, and the purchaser is not bound to make an examination of the drug delivered, or make further inquiry, to see that no mistake had been made. The purchaser has a right to rely upon the implied representation of the druggist that the drug delivered to him was the drug he called for. Of

5 Sutton v. Wood, 120 Ky. 23, 85 S. W. 201, 27 ky. L. Rep. 412.

1 Horst v. Walter, 53 N. Y. Misc. Rep. 591, 103 N. Y. Supp. 750; Brunswig v. White, 70 Tex. 504, 8 S. W. 85; Kennedy v. Plank, 120 Wis. 197, 97 N. W. 895.

A similar ruling was made where a physician's prescription

called for aromatic spirits of ammonia, to be taken inwardly, and the druggist put up the ammonia in its pure state without weakening it with water. In the state he put it up in it was a very dangerous drug. Butterfield v. Smellenburg (Pa.), 79 Atl. 980.

course, if he knows a mistake has been made, then he must act accordingly, for if he then takes the drug, and is injured, he would be guilty of contributory negligence.1

§ 632. Drug Sold for Specific Purpose.

If a druggist sells a drug for a specific purpose he impliedly represents it as suitable for that purpose. Thus, where a person asks a druggist for a drug for a particular, specified purpose, and the druggist furnishes it, he impliedly represents the drug sold to be suitable for that purpose. Hence, where one was asked for corrosive sublimate "to apply to the body to kill lice," and the druggist prepared it for that purpose, but made the solution so strong that it caused severe injury, he was held liable for damages, the case being considered as a sale of a harmful drug sold as a harmless one.1

§ 633. Druggist Recommending a Prescription.

A druggist who in good faith recommends a prescription, and then fills it when requested to do so, and the medicine thus compounded produces an injury to the person taking it, is not liable, if he properly filled the prescription. Such was held to be the case where a druggist in good faith recom

1 Knoepel v. Atkins, 40 Ind. App. 428, 81 N. E. 600. In this case the complaint averred that the defendant sold a drug to her for phosphate of soda, and that from the identical drug thus sold by the defendant for phosphate of soda she took the dose which injured her, and that it was acetanilide; that she knew nothing about the appearance of either drug, and believed the medicine she was taking to be what it was sold for, phosphate of soda; and the verdict was for the plaintiff on those allegations, was held that it was a harmless error to give an instruction which

It

left out the element of contributory negligence on the part of the plaintiff.

See upon the general proposition, Horst v. Walter, 53 N. Y. Misc. Rep. 591, 103 N. Y. Supp. 750; Kennedy v. Plank, 120 Wis. 197, 97 N. W. 895.

1 Goldberg v. Hegeman & Co., 60 N. Y. Misc. 107, 111 N. Y. Supp. 679. In this case as the druggist sold the drug as fit for the purpose for which he sold it, his liability was held not affected by his failure to label it as fit for that purpose.

mended the prescription of another person, to the owner of a sick horse, who ordered him to put it up, and paid him, and the compound injured the horse.1 But where the plaintiff asked a druggist for a preparation to wash a wound, and he furnished a solution containing over 86 percent of carbolic acid, without giving a proper label or instruction, it was held that he was negligent, and liable for the injuries sustained by the plaintiff in using the solution as a wash for the wound.2

§ 634. Chemical Mixed After Sale with Another Chemical Producing Dangerous Compound.

If a druggist furnishes by mistake a harmless chemical, not knowing to what use it is to be put, which, if mixed with another harmless chemical, produces a dangerous agent, he will not be liable if the mixture cause injury to the person repurchasing it from the first purchaser. Thus, where a wholesale druggist furnished by mistake sulphide of antimony for black oxide of manganese, to a retail druggist, he was heid not liable to a purchaser from the druggist for damages caused in the use of the article which was not injurious except when used in composition with another chemical agent, the wholesale druggist not knowing that it was to be resold to this particular purchaser.1

§ 635. Sale of Drug to Minor in Violation of Statute.

If a druggist sell a deadly drug to a minor in violation of a statute prohibiting it, without further negligence, which leads to his injury or death, although the act of sale is negligence per se, thereby leaving the sole question whether it was the proximate cause of the injury or death, yet if the minor had arrived at sufficient age to be capable of con tributory negligence there can be no recovery, for the

1 Ray v. Burbank, 61 Ga. 505,

34 Am. Rep. 103.

2 Horst v. Walter, 53 N. Y. Misc. Rep. 591, 103 N. Y. Supp. 750.

1 Davidson v. Nichols, 11 Allen 514.

act of the minor, and not the sale of the drug to him, must be considered the proximate cause of the injury or death. And where a druggist sold unlawfully a poisonous drug to a minor, a quantity of which by this minor was administered to another minor, to his injury, it was held that the father of the latter had no cause of action against such druggist for the loss of his son's services and medical expenses; for it can not be said that the druggist might reasonably have anticipated such use of the drug where, under the circumstances, the presumption arises that the purchaser knew of the qualities of the drug and the effect it would produce."

§ 636. Negligently Compounding Prescription-Illegible

Prescription.

It is the duty of a druggist to compound a prescription as it was written by the physician. If he faithfully does that he is not liable for fatal results that follow from the patient. taking the medicine prescribed. But if he knows the physician has made a mistake, and that the medicine as compounded will be dangerous or fatal, then it is his duty to call the physician's attention to the mistake, and if he does not do it, but prepares the medicine according to the prescription, and gives no warning that it is dangerous, he will be liable for the result it produces. But if the prescription be so illegibly written that a druggist, notwithstanding the exercise of ordinary care, makes such a mistake in mixing the ingredients as to injure the person taking the compound, such druggist is not liable in damages to the person injured.1 A prescription called for "Elixir Pinus Comp. cum Heroinounces 4." The druggist had a bottle of "Elixir Pinus Compositus," and a bottle of Heroin, and, on consulting a pamphlet issued by the maker of the Heroin and the Elixir Pinus Compositus, he found that such manufacturer also put

1 Meyer v. King, 72 Miss. 1, 16 So. 245, 35 L. R. A. 474.

2 McKibbin v. F. E. Box & Co., 79 Neb. 577, 113 N. W. 158, 13

L. R. A. (N. S.) 646, 126 Am. St. 677.

1 McClardy v. Chandler, 2 Wkly. Law Gaz. 1.