up a compound known as "Elixir Pinus Compositus with Heroin," and the formula in the pamphlet showed that the proportion of Heroin in the Elixir Pinus Compositus with Heroin was 12 of a grain per drachm, whereupon, in filling the prescription, he added 1/2, of a grain of Heroin to each drachm of Heroin to each drachm of Elixir Pinus Compositus. It was held that he was not negligent in so compounding the prescription. If a druggist so carelessly compound a mixture in his store as to cause an explosion which injures a person therein, he is liable, if he failed to exercise the utmost care to avoid the injury, if the mixture was such that a welleducated druggist should reasonably suspect danger from an explosion.3

§ 637. Purchaser Informed of Deadly Character of Drug.

Notwithstanding a statute makes it an offense to sell a poison without labeling it, yet if a druggist selling a poison inform the purchaser of its deadly character, and warns him against the improper use of it, he will not be liable in damages for causing the death of the purchaser who inadvertently takes it, for by taking it, after such warning, he contributes to his own injury, which will preclude his recovering damages. So where the plaintiff's wife sent a fourteen-year-old girl to a drugstore to purchase morphine to be used by her (the wife), and the girl had knowledge of the dangerous character of the drug, and warned her not to take the entire contents of one packet, on the ground she thought it was too much, it was held that the wife was charged with knowledge of the poisonous character of the drug, and the plaintiff could not recover. But where a person sent a bot

V.

2 Laturen Bolton Drug Co. (N. Y.), 93 N. Y. Supp. 1035.

3 Kerr v. Clason, 2 Ohio Dec. 666, 4 West. Law Mon. 488.

The filling of a prescription for aromatic spirits of ammonia to be taken internally, with the liquid in its undiluted condition is such negligence as renders the druggist

liable to the person taking it to his injury. Butterfield v. Smellenburg (Pa.), 79 Atl. 980.

1 Wohlfahrt v. Beckert, 92 N. Y. 420, 44 Am. Rep. 406, affirming 27 Hun 74; Ray v. Burbank, 61 Ga. 505, 34 Am. Rep. 103.

2 Fowler v. Randall, 99 Mo. App. 407, 73 S. W. 931.

3

tle with a label on it marked "Carbolic Acid" to a druggist to be filled with arnica, and he filled it with carbolic acid, and not arnica, and did not change the label, and did not inform the person to whom he delivered it that he had not put arnica in it, it was held that such person was not guilty of contributory negligence because he used the carbolic acid to his injury, not heeding the label, and supposing the liquid to be arnica. The negligence of a medical student, who had recommended arnica for a cracked finger, in not discovering that the liquid sent by the druggist was carbolic acid instead of arnica, was held not to be imputed to the injured person, so as to preclude him recovering for the druggist's negligence. Where a druggist was guilty of negligence in the sale of strychnine, the proximate result of which was the death of the plaintiff's intestate, it was held no defense for the druggist that the negligence of the intestate's nurse in administering the poison concurred with the druggist's negligence in causing the intestate's death. An agent for the plaintiff called at the defendant's drugstore and asked for quinine, but was given morphine, and told by the clerk that it was the best French quinine. The clerk testified that he had delivered what was called for, and that ounce bottles of both drugs were kept in separate places, some distance apart, but that both were wrapped in blue paper. The court told the jury that the plaintiff could not recover if his agent got what he called for, and then refused to say that he could not recover if his agent was negligent in not examining the label on the bottle, and this was held not error, for no evidence called for the giving of the instruction refused. A defendant put up for the plaintiff a dose of belladonna by mistake for dandelion, from a jar properly labeled. Plaintiff then When warned the wife said, "she ing whether the quantity so taken guessed the druggist knew what he was a proper or fatal dose. was doing, or ought to," and swallowed the morphine. It was held she was guilty of contributory negligence as a matter of law, for so taking the morphine without know

PURE FOOD-52.

3 Peterson v. Westmann, 103 Mo. App. 672, 77 S. W. 1015.

4 Sutton v. Wood, 120 Ky. 23, 85 S. W. 201, 27 Ky. L. Rep. 412. 5 Brunswig v. White, 70 Tex. 504, 8 S. W. 85.

took a portion from the same jar, and asked the defendant if it was a dose, to which he replied, "Yes." He then swallowed it. It was held that the failure of the court to instruct, without qualification, that if the plaintiff was guilty of contributory negligence he could not recover, was error, there being no evidence that the defendant knew the plaintiff's danger, to support an instruction that, in that event, he would be liable, even if such defendant took no steps to avoid the danger. A father procured a prescription for his little daughter, which called for medicine in the form of a powder, to be given once every three hours. It was left with the child's mother, who was informed by the child's physician that it would be in powder form, and directed to give one every three hours. By mistake the druggist sent the medicine in liquid form (of another customer), the label. on the bottle being marked with his name, and containing directions to give one teaspoonful every two hours, which was delivered. The father was not present when the information and directions were given by the physician, but before any of the medicine was given he was informed by the mother what were the directions. He also read the directions on the bottle, and knew that the prescription was for powder. He was present when the liquid was given to the child, and permitted it to be done. After the first dose, and when nearly time for the second, he suspected something was wrong, and telephoned the doctor from a neighbor's residence. He left the house without imparting to his wife his suspicions or directing her to delay the second dose until he had heard from the doctor, and it was given before his return, and the daughter afterwards died. It was held that these facts showed that the father was guilty of contributory negligence, and could not recover damages for the loss of his child.'

6 Gwynn v. Duffield, 61 Iowa 64, 15 N. W. 594, 47 Am. Rep. 802.

7 Scherer v. Schlaberg, 18 N. D. 421, 122 N. W. 1000; Van Lien v. Scoville Mfg. Co., 14 Abb. Pr. (N. S.) 74.

It may be shown that the plaintiff was so drunk when he took the poison that he did not know what he was doing. McVeigh v. Gentry, 72 N. Y. App. Div. 598, 76 N. Y. Supp. 535.

§ 638. Knowingly Administering Poison or Unwholesome Food.

To knowingly administer poison to another without his consent is an assault and battery, rendering the person administering it liable to a criminal prosecution. Thus, where a druggist, at the request of a customer, dropped croton oil on a piece of candy which the purchaser gave to another person, who ate the candy so drugged, to his injury, the druggist knowing, or having reason to believe, that the dose was intended for such person, or for someone else as a trick, and not for medical purposes, he was held liable upon a criminal charge of assault and battery.

§ 639. Plaintiff, Without Consent of Defendant, Taking by Mistake Dangerous Drug from Properly Labeled Vessel.

Where the plaintiff went into the defendant's drugstore and helped himself to what he supposed was a dose of the extract of dandelion, but which was belladonna, and claimed that he bought and took under the defendant's direction, but the fact was that the jar was properly labeled, and plaintiff could read, and his only excuse was that the defendant had just made the same mistake in filling an order, it was held that the jury should have been told that if the plaintiff was guilty of contributory negligence he could not recover for damages caused thereby.1

§ 640. Prima Facie Showing of Negligence in Sale of Drug.

If it be shown that one drug was called for and another delivered, without any information being given that the one. called for was not delivered, there is a prima facie case of

8 State v. Monroe, 121 N. C. 677, 28 S. E. 547, 61 Am. St. 686, 43 L. R. A. 861; Commonwealth v. Stratton, 114 Mass. 303, 19 Am. Rep. 350; Regina v. Loch, 12 Cox C. C. 244; Regina v. Sinclair, 13 Cox C. C. 28; Regina v. Button, 8

C. & P. 660; McClure v. Klein, 60 Tex. 168 (inducing an habitual drunkard to drink three pints of liquor at one sitting, to his death).

1 Gwynn v. Duffield, 66 Iowa 708, 55 Am. Rep. 286, 61 Iowa 64, 47 Am. Rep. 802.

negligence on the part of the druggist. A druggist is bound to know the medicines he compounds, and he can not excuse himself from liability by showing that he used extraordinary care and diligence in compounding the medicine. In an Indiana case this rule was applied to a sale of a deadly drug by mistake: "Where an accident happens resulting in the injury to a person or his property, and it is made to appear that all the instrumentalities causing the accident are under the exclusive control and management of the defendant, and the accident is such as ordinarily would not occur if due care was exercised by those who have control of such instrumentalities, and the duty to exercise such care is owing the plaintiff from the defendant, then proof of the circumstances of the accident and injury resulting therefrom rests on the defendant the presumption of negligence and the burden of explaining the accident consistent with due care on his part. Does this rule," asks the court, "apply to the case of a druggist who, by mistake, deals out poison to a customer who calls for a harmless remedy? What duty does the druggist owe to the customer? All the authorities agree, and the very necessities of the case require, that the highest degree of care known to practical men must be used to prevent injuries from the use of drugs and poisons. It is for these reasons that a druggist is held to a special degree of responsibility. The care required must be commensurate with the danger involved. The skill employed must correspond with that superior knowledge of the business which the law requires. The same rule that applies to the common carrier of passengers, and for the same reason that is, that the life and safety from bodily harm of a passenger is at hazard, and his security due to the care and skill of the carrier alone, and under 1 Howes v. Rose, 13 Ind. App. 8 Am. Rep. 298; Walton v. Booth, 674, 42 N. E. 303; Smith v. Hayes, 34 La. Ann. 913; Davidson v. Nich23 Ill. App. 244; Davis v. Guar- ols, 11 Allen 514; Hansford V. nieri, 45 Ohio St. 470, 15 N. E. Payne, 11 Bush 380. 350, 4 Am. St. 548; Minner v. Sherpich, 5 N. Y. St. Rep. 851; Norton v. Sewall, 106 Mass. 143,

2 Fleet v. Hollenkamp, 13 B.

Mon. 219.