CHAPTER XIV.

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].

|189|

The Law and Medical Men · 第 14 / 15 章