Under the Ontario Act ([463]) there is a College of Pharmacy, managed by a Pharmaceutical Council who grant certificates of competency to practise as pharmaceutical chemists, prescribe the subjects on which candidates are to be |176| examined, and arrange for the registration of chemists. No one, save those registered or their employeés, is authorized to compound prescriptions of legally authorized medical practitioners. The Act, however, does not apply to medical practitioners. But, save as aforesaid, no one can retail, dispense, or compound poisons, or sell certain articles named, or assume or use the title of “Chemist and Druggist,” or “Chemist,” or “Druggist,” or “Pharmacist or Apothecary,” or “Dispensing Chemist or Druggist,” unless he has complied with the Act.
The Code Napoleon recognizes two classes of vendors of drugs and medicines, apothecaries and druggists. The former, who are assumed to be pharmaceutically educated, are alone allowed to sell compounded medicine, the latter who are classed with grocers are only permitted to sell drugs of a simple character in bulk and at wholesale ([464]). In the United States, wherever statutes do not otherwise direct, apothecaries and druggists are put upon the common law footing of provision vendors, and may sell in any quantities articles in which they deal.
A druggist is held to a strict accountability in law for any mistake he may make in compounding medicine or selling his drugs. By the statute law of England it is declared to be the duty of every person using or exercising the art or mystery of an apothecary to prepare with exactness, and to dispense, such medicines as may be directed for the sick by any physician ([465]). And by the same Act, for the further protection, security, and benefit of George the Third’s subjects it was declared, that if any one using the art or mystery of an apothecary, should deliberately or negligently, unfaithfully, fraudulently or unduly make, mix, prepare or sell any medicines, as directed by any prescription signed by any |177| licensed physician, such apothecary shall, on conviction before a Justice of the Peace, unless good cause be shown to the contrary, forfeit for the first offence £5, for second, £10, and for third he shall forfeit his certificate. But apart from any statute, whenever a druggist or apothecary (using the words in their general sense) sells a medicine, he impliedly warrants the good quality of the drugs sold; and besides that, he warrants that it is the article that is required and that it is compounded in every prescription dispensed by him secundum artem. Like the provision dealer, the pharmaceutist is bound to know that the goods he sells are sound, i.e., competent to perform the mission required of them, and being so presumed to know, he warrants their good qualities by the very act of selling them for such. The rule, “Let the buyer beware,” does not apply.
In some way Fleet and Simple got cantharides mixed with some snake root and Peruvian bark. Unfortunately Hollenbeck, requiring some of this latter mixture, bought this that these druggists had, took it as a medicine, and in consequence suffered great pain, and had his health permanently impaired. He sued for damages, and recovered a verdict for $1,140. The defendants asked for a new trial, but the Court refused it saying, “Purchasers have to trust to a druggist. It is upon his skill and prudence they must rely. It is his duty to know the properties of his drugs, to be able to distinguish them from one another. It is his duty so to qualify himself, or to employ those who are so qualified, to attend to the business of compounding and vending medicines and drugs, as that one drug may not be sold for another; and so that, when a prescription is presented to be made up the proper medicine, and none other, be used in mixing and compounding it. The legal maxim should be reversed, instead of caveat emptor it should be caveat venditor, i.e., let him be certain that he does not sell |178| to a purchaser or send to a patient, one thing for another, as arsenic for calomel, cantharides for, or mixed with snake root and Peruvian bark, or even one innocent drug calculated to produce a certain effect, in place of another sent for and designed to produce a different effect. If he does these things he cannot escape civil responsibility upon the alleged pretext that it was an accidental or an innocent mistake. We are asked by the defendants’ attorneys in their argument, with some emphasis, if druggists are in legal estimation, to be regarded as insurers. The answer is, we see no good reason why a vendor of drugs, should in his business be entitled to a relaxation of the rule which applies to vendors of provisions, which is, that the vendor undertakes and insures that the article is wholesome ([466]).”
The general customer is not supposed to be skilled in the matter of drugs, but in the purchase he must rely upon the druggist to furnish the article called for; and in this particular business the customer who has not the experience and learning necessary to a proper vending of drugs, will not be held to the rule that he must examine for himself, it would be but idle mockery for the customer to make the examination when it would avail him nothing. On the contrary, the business is such that in the very nature of things, the druggist must be held to warrant that he will deliver the drug called for and purchased by the customer ([467]).
It is the duty of the druggist to know whether his drugs are sound or not, and it is no answer to his want of knowledge to say, that the buyer had opportunities for inspection, and could judge for himself of the quality of goods ([468]).
If a druggist miscompounds a medicine, or intentionally deviates from the formula, he commits a tortious act, and |179| if any injury arises to another through his ignorance or neglect he is liable. Even if a physician writes a prescription wrongly it is expected that the druggist will know enough to detect the error, and whether he does so or not he still compounds it at his peril. For one man’s negligence or omission of duty is no palliation of another’s, and under the doctrine of joint liability the apothecary or druggist who compounds, knowingly or not, a noxious prescription, commits a joint tort with the physician who writes it ([469]). And in an action against a druggist for injury through the negligence of his clerk in selling sulphate of zinc for Epsom salts, it is no defence to say that the subsequent medical treatment was negligent ([470]).
A wholesale druggist is liable in the same way as a retail, when he supplies substances notoriously dangerous to health or life, and he impliedly warrants the articles to be as represented by their conventional designation, and if they are not so, he is liable for all damages that may ensue from his misrepresentation ([471]).
If a druggist affixes to a medicine, or drug, a label bearing his name and stating it to have been prepared by him, he makes the warrant only more notorious, and by so doing (inasmuch as it is an invitation to the public to confide in his representation), is ever after estopped from denying responsibility for any injury which may have arisen out of defects in its quality, or errors in its composition. So long as the label is attached, it is an affirmation of the good quality of the article and its correct composition, to every one who relies upon it when buying. But as some articles deteriorate in time, what is said in relation to the liability of the vendor applies only to the article at the time it leaves |180| his hands. He only warrants its good qualities then, but no longer, and his representation affirms that much, and no more ([472]). The subject of labels was carefully considered in Thomas v. Winchester ([473]), where Ruggles C.J. gave judgment. Mary Ann Thomas was ordered a dose of extract of dandelion, her husband bought what he believed was dandelion from Dr. Foord, druggist and physician; but it was extract of belladonna. The jar was labelled ‘½ ℔ dandelion, prepared by A. Gilbert, No. 108 John street, N. Y.’ Foord bought it as dandelion from James S. Aspinwall, druggist, who bought it from defendant, a druggist, 108 John street. Defendant manufactured some drugs and purchased others, but labelled all in the same way. Gilbert was an assistant who had originally owned the business. The extract in the jar had been purchased from another dealer. The two extracts are alike in colour, consistency, smell and taste. Gilbert’s labels were paid for by defendant and used in his business with his knowledge and consent. A non-suit was moved for on the ground, that defendant being a remote vendor and there being no privity or connection between him and the plaintiff, the action could not be sustained. The Court said, “Gilbert, the defendant’s agent, would have been punishable for manslaughter if Mrs. Thomas had died in consequence of taking the falsely labelled medicine. Every one who by his culpable negligence causes the death of another, although without intent to kill, is guilty of manslaughter ([474]). This rule applies not only where the death of one is occasioned by the neglectful act of another, but where it is caused by the neglectful omission of a duty by that other ([475]). Although the defendant W. may not be answerable criminally for the neglect |181| of his agent, there can be no doubt as to his liability in a civil action, in which the action of the agent is to be regarded as the act of the principal. The defendant’s neglect put human life in imminent danger. Can it be said that there was no duty on the part of the defendant to avoid the creation of that danger by the exercise of greater caution? Or that the exercise of that caution was a duty only to his immediate vendee, whose life was not endangered? (He being a dealer and not a customer.) The defendant’s duty arose out of the nature of his business, and the danger to others incident to its mismanagement. Nothing but mischief like that which actually happened could have been expected from sending the poison falsely labelled into the market, and the defendant is justly responsible for the probable consequences of the act. The duty of exercising caution in this respect did not arise out of the defendant’s contract of sale to Aspinwall. The wrong done by the defendant was in putting the poison unlabelled into the hands of Aspinwall as an article of merchandise to be sold, and afterwards used, as the extract of dandelion by some person then unknown. The defendant’s contract of sale to Aspinwall does not excuse the wrong done the plaintiffs. It was part of the means by which the wrong was effected. The plaintiffs’ injury and their remedy would have stood on the same principle if the defendant had given the belladonna to Dr. Foord without price, or if he had put it in his shop without his knowledge under circumstances that would have led to its sale on the faith of the labels.”
Ordronaux says (sec. 186): It cannot be denied that had Mrs. Thomas died, Foord would, equally with Gilbert, have been guilty of manslaughter, since whether he intended it or no, he was doing an unlawful act in dispensing a poison for a salutary medicine. While then it may be proper enough to rely upon labels and warranties of others, |182| in dealing with ordinary substances, still when it comes to articles of a character dangerous to health or life, the law will presume knowledge of their quality in those professionally dealing in them, and exact a degree of skill and care commensurate with the risks incurred. Here it is caveat venditor instead of caveat emptor.