DRUGGISTS.
A druggist, the Supreme Court of Louisiana says, means “one who sells
drugs without compounding or preparing them: and so is a more limited
term than apothecary [459].”
A commission merchant, dealing principally in alcohol, is not a
druggist, within the meaning of the Massachusetts’ Act, regulating the
sale of alcohol by druggists [460]; and although whiskey may be sold by
druggists in comparatively small quantities as medicine, and doubtless
a great many people so take it, still it was held that fifty barrels of
whiskey remaining in a bonded warehouse at the time of his death would
not pass under the will of a wholesale and retail druggist bequeathing
his stock of medical drugs, etc. The Court considered fifty barrels of
whiskey wholly disproportionate to the ordinary stock of medicine and
drugs kept on hand by the testator—too much sack for the bread [461].
One may be an apothecary or druggist although he does not actually
compound his medicines [462].
In the early days in England, the grocers, or poticaries, who formed
one of the trade guilds of London, united with their ordinary business
the sale of such ointments, simples |175| and medicinal compounds as
were then in use. In the days of Henry VIII., the medical department
of the grocers’ trade being greatly increased, shops were established
for the exclusive sale of drugs and medicinal and all kinds of
chemical preparations. We have a graphic description of one of these
apothecaries about the days of “Good Queen Bess,” in the words of the
prince of English dramatists:
——I do remember an apothecary,
And hereabouts he dwells, which late I noticed
In tatter’d weeds, with overwhelming brows,
Culling of simples: meagre were his looks,
Sharp misery had worn him to the bones,
And in his needy shop a tortoise hung,
An alligator stuff’d, and other skins
Of ill-shaped fishes: and about his shelves
A beggarly account of empty boxes,
Green earthen pots, bladders and musty seeds,
Remnants of pack thread and old cakes of roses
Were thinly scattered to make up a show.
ROMEO AND JULIET, Act. V., SC. 1.
Until 1868, any person whatever might open what is called a chemist’s
shop in England, and deal in drugs and poisons. In that year, however,
the Pharmacy Act was passed, which prohibits any person engaging in
the business of, or assuming the title of, Chemist and Druggist, or
dispensing chemicals or drugs, unless he be registered under that Act.
And to be registered one must pass an examination in Latin, English,
arithmetic, prescriptions, practical dispensing, pharmacy, materia
medica, botany and chemistry.
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_.
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].
An action can be maintained by a husband against a druggist to recover
damages for selling to the plaintiff’s wife, secretly, from day to day
large quantities of laudanum to be used by her as a beverage, and which
are so used by her to the druggist’s knowledge, without the knowledge
or consent of the husband, the druggist well knowing that the same was
injuring and impairing her health, and concealing the fact of such
sales and the use thereof from the husband; |187| in consequence of
which use by her the wife became sick and emaciated, and her mind was
affected, so that she was unable to perform her duties as such wife,
and her affections became alienated from her husband, and he lost her
society, and was compelled to expend divers sums of money in medical
and other attendance upon her [489].
In some of the American Courts it has been held that a statute
forbidding the sale or keeping for sale without authority of spirituous
or intoxicating liquors does not apply to druggists who keep such
liquors only for the purpose of mixing them with other ingredients,
according to prescriptions of physicians; and also for the purpose
of manufacturing such compounds as are commonly used by druggists to
be sold as medicines for remedies for sickness and disease [490]. The
question has often come up whether a compound sold by a druggist is to
be considered an intoxicating liquor, the sale of which is illegal,
or not. The rule laid down is, that so long as liquors retain their
characters as intoxicating liquors, capable of being used as beverages,
notwithstanding that other ingredients—roots or tinctures—may have been
mixed therewith, they fall under the ban of the law; but when they
are so compounded with other substances as to lose their distinctive
characters of intoxicating liquors, and are no longer desirable for
use as stimulating beverages, they are medicine and their sale is not
prohibited [491].
In Indiana a _bona fide_ sale of intoxicating liquor by a druggist
for medicinal purposes is not a violation of the statute regulating
the sale of such liquors, although the statute contains no exception
authorizing the sale of such |188| liquors, without license, for
medicinal, chemical or sacramental purposes.
And that is the law in North Carolina, but not in Arkansas [492]. In
Iowa it was considered a breach of the law for a druggist to sell a
quart of whiskey to a stranger upon his simple statement that he was
accustomed to take it as a medicine and wanted it as such [493].
In Texas, where a druggist can only sell ardent spirits upon the
prescription of physicians in sickness, a druggist who is himself a
physician may sell to a sick patient without a prescription from anyone
else [494].
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