In Kentucky, a druggist sold croton oil instead of linseed oil for a patient, who, in consequence of the mistake, died. His widow was held entitled to full damages against the seller ([476]).
If a druggist negligently sell a deadly poison as and for a harmless medicine to A., who buys it to administer to B., and gives B. a dose of it as a medicine, from the effect of which he dies, a right of action against the druggist survives to B.’s representative, notwithstanding the want of privity of contract between B. and the druggist ([477]). And this is the rule, also, when the sale has been made by the apothecary’s assistant ([478]).
Joseph George, and Emma, his wife, sued Skivington, a druggist, alleging that he, in the course of his business, professed to sell a chemical compound made of ingredients known only to him, and by him represented to be fit for a hairwash without causing injury to the person that used it, and to have been carefully compounded by him; that Joseph thereupon bought of the defendant a bottle of this hairwash, to be used by Emma, as the defendant knew, and on the terms that it could be so safely used, and had been so compounded; yet the defendant had so negligently and unskilfully conducted himself in preparing and selling the hairwash, that it was unfit to be used for washing the hair, whereby the plaintiff, Emma, who used it for that |183| purpose was injured. The Court held that a good cause of action was shewn ([479]).
A Massachusetts apothecary sold sulphide of antimony by mistake for black oxide of manganese. The two look alike, but differ in this, that the preparation of manganese may be safely mixed with chlorate of potassia for many useful purposes; but if that antimony is mixed with that chlorate, an explosive compound is formed. The buyer, supposing he had manganese, proceeded to mix it with potassia, having bought the article for that purpose. But, it being antimony, the compound which he made exploded, broke his head, damaged his hearing, and destroyed the furniture of his laboratory. Yet the Court held that the druggist was not chargeable with these damages, because he did not know that the article he sold was to be mixed with potassia, and did not sell it for that purpose. Kept or used by itself, as he sold it, it would have been innocuous. He was not to blame for the mixing, the real cause of the injury ([480]).
In England ([481]), a chemist and druggist was indicted for manslaughter, but was acquitted. The deceased had been in the constant habit of getting aconite and occasionally henbane from Noakes; on this occasion he sent two bottles of his own, one marked, “Henbane, 30 drops at a time.” The druggist by mistake put the aconite into the henbane bottle, the dose of thirty drops was taken, and the customer was no more. Erle, C.J., told the jury that although there might be evidence of negligence sufficient for a civil action, still that they could not convict unless there was such a degree of complete negligence as the law meant by the word “felonious,” and that in this case he did not think there |184| was sufficient to warrant that. But Tessymond, a chemist’s apprentice, was found guilty of manslaughter for causing the death of an infant by negligently giving to a customer who asked for paregoric to give to the infant (a child of nine weeks old), a bottle with a paregoric label, but containing laudanum, and recommending a dose of ten drops ([482]).
One Jones recovered against a chemist and druggist of the name of Fay, £100 for damages, because he, Fay, gave him blue pills for the painters’ colic, such physic being improper ([483]). A man, on the advice of a friend, went to a drug store for ten cents worth of “black-draught,” a comparatively harmless drug, of which he intended to take a small glassful as a dose for diarrhœa. There was evidence given by the clerk who sold the mixture, that at the shop he asked for “black-drops,” the defendant, the proprietor, told him that that was poison, that the dose was from ten to twelve drops, and advised him to take another mixture; he refused, and the clerk (by the defendant’s direction), gave him two drachms of “black-drops” in a bottle, with a label bearing those two words written upon it, but nothing to indicate the dose, or that it was poison. The man took the bottle home, drank almost all its contents, and died the next morning from the effects of so doing. In an action brought by the representative of the deceased to recover damages for negligent killing by the defendant, it was held that the Courts should have submitted to the jury the question as to whether the defendant was not guilty of negligence in failing to place upon the bottle a label, shewing that its contents were poisonous, and that it erred in non-suiting the plaintiff. Afterwards in giving the judgment of the Court of Appeal, Finch, J., said, “on such a state of facts (as sworn to by the clerk) a verdict |185| against the defendant would not be justified. Although no label marked ‘poison’ was put upon the phial, and granting that by such omission the defendant was guilty of misdemeanor and liable to the penalty of the criminal law (under the statute of the State), still that fact does not make him answerable to the customer injured, or to his representative in case of his death, for either a negligent or wrongful act, when towards that customer he was guilty of neither, since he fairly and fully warned him of all and more than could have been made known by the authorized label. * * * If the warning was in truth given, if the deceased was cautioned that the medicine sold was a strong poison, and but ten or twelve drops must be taken, he had all the knowledge and all the warning that the label could have given, and could not disregard it and then charge the consequences of his own negligent reckless act upon the seller of the poison. But if no such warning was given, its omission was negligence, for the results of which the vendor was liable both at common law and by force of the statute.” But the Court considered that the clerk being himself the one who had been negligent stood in a position to provoke suspicion, arouse doubt and justify watchful and rigid criticism, and that this joined with the conduct of the deceased, developed a question of fact rather than of law, and that the Court below was right in saying that the case should have been submitted to the jury ([484]).
Under the Ontario Pharmacy Act no one can sell certain poisons named without having the word “Poison,” and the name of the article, distinctly labelled upon the package; and if the sale is by retail, the name of the proprietor of the establishment where it is sold, and the address must also be on the label ([485]). |186|
Any person selling any poison, in violation of the Act, is liable to a penalty of not more than $20 and costs for the first offence, and $50 and costs for every subsequent offence; and one-half of the penalty goes to the prosecutor; and no one selling in violation of the Act can recover his charges. And one wilfully or knowingly selling any article under pretence that it is a particular drug or medicine, when it is not, is liable to the above penalties, besides any other to which he may be liable irrespective of the Act ([486]).
In Georgia it was held, that where a druggist in good faith recommended the prescription of another person to the owner of a sick horse, who thereupon ordered him to put it up and paid for it, the owner had no cause of action because the medicine had injured his horse, as the stuff was properly prepared according to the prescription ([487]).
In England chemists and druggists are liable to the heavy penalty of £500 if they sell to brewers or dealers in beer anything to be used as a substitute for malt; they are also liable for adulterating, or selling any adulterated, medicine; and on a second offence of this kind, the name of the offender, his abode, and his crime may be published in the newspapers at his expense ([488]).