TIES OF VENDORS OF DRUGS. 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 can not escape civil responsibility upon the alleged pretext that it was an accidental or an innocent mistake; that he had been very careful and particular, and had used extraordinary care and diligence in preparing or compounding the medicines as required. Such excuses will not avail him, and he will be liable, at the suit of the party injured, for damages, at the discretion of a jury." good and wholesome, it may be aske ere any sound reason why this coc aw should not apply with equal, if to vendors of drugs from a drug-st usage may be presumed, a great varie mineral substances of poisonous p en as medicine, will destroy health rance and qualities of which are they be chemists, druggists or asers of wines and provisions by ay be able, without incurring any et their bad and unwholesome qualo lly unable by the taste, or appeara distinguish those which are pos are innoxious, so close is their res er; purchasers have, therefore, to tr s upon his skill and prudence they Fore, incumbent upon him that he w s. It is his duty to know the prope o be able to distinguish them from uty so to qualify himself, or to emp qualified, to attend to the business ending medicines and drugs, as that sold for another; and so that, wh sented to be made up, the proper er, be used in mixing and compo to the owners of drug-stores, or pers g drugs and medicines by reta I be reversed. Instead of careat vendor. That is to say, let him be not sell to a purchaser, or send t or another, as arsenic for calomel, ed with snake-root and Peruvian bat § 181. This doctrine, unless the word drug be syncopated from medicine as having a more comprehensive meaning, must, undoubtedly be qualified in its application so as to meet the case of wholesale vendors, who, selling articles not exclusively of therapeutic value, nor of an absolutely dangerous character to health or life, but such as are also consumed in the arts, though commercially denominated drugs; and selling them by sample, or under an inspector's brand in bulk, 'can not legitimately be held to the same measure of accountability as dispensing pharmaceutists. The wholesale dealer, in fact, occupies the same relative position towards the compounder and dispenser of drugs in medicinal doses, that general vendors of provisions as merchandize, do to vendors of provisions for domestic use. Yet, when it comes to substances notoriously dangerous to health or life, the wholesale druggist stands on the same footing of responsibility as the retailing pharmaceutist, and impliedly warrants the articles to be as represented by their conventional designation, and if they are not so, is liable for all damages that may 2 1 Hollenbeck v. Fleet & Semple, 13 B. Monroe, 229. 2 Emerson v. Brigham, 10 Mass. 197; Winsor v. Lombard, 18 Pick. 57; La Neuville v. Nourse, 3 Campb. 351; Moses v. Mead, 1 Denio, 378. ensue from his mis-representation. At common law the selling of unwholesome provisions is indictable even in the case of a general dealer, because, as was justly said in one case, "it is against the commonwealth." But the authorities showing that an indictment will lie for selling unwholesome provisions confine the rule to cases where the sale is for immediate consumption by the purchaser. By parity of reason some distinction should be made (for a very important one certainly exists,) between substances which, though often used as medicines, are yet employed in large quantities for purposes of an entirely different character, and no absolute rule consequently can be equitably framed upon a foundation of liability constantly shifting pro re nata. The inquiry must be narrowed down, therefore, in the same way as with provisions, making the immediate consequence of the use of the article by the purchaser, to health or life, the standard by which to judge of the responsibility of the vendor. 1 Van Bracken v. Fonda, 12 Johns. 468; Jones v. Murry, 3 Monroe, 85; Marshall v. Peck, 1 Dana, 609; Hart v. Wright, 17 Wend. 267; and 18 Ib. 456. 2 Roswell v. Vaughan, Cro. Jac. 196; Roscoe's Cr. Evid. 340-5; 4 Blacks. Comm. 162. representation At common law a, 12 Johns. 468; Jones e. Murry, 3 Minne. Ši CHAPTER II. LIABILITIES OF MANUFACTURING PHARMACEUTISTS FOR FALSE § 182. THE profession of pharmacy, requiring for its most perfect exercise a laboratory, with suitable apparatus, for the preparation of the manifold articles of the materia medica, together with accomplished chemists to direct and superintend their manufacture, and the capital required for this branch alone of the art placing it beyond the reach of many otherwise competent apothecaries, there has sprung out of this divided necessity between means and manufacture two classes of pharmaceutists, viz., manufacturing and dispensing. Legally speaking, the former class include also the latter, and being the original introducers of many, if not most of the articles in the dispensing pharmaceutist's hands, they become, in common with provision vendors, as heretofore explained, warrantors of the good quality of the article, or of the correctness of its manufacture, when represented to be the product of a specific formula (known and adopted by the profession eo nomine) at the time it leaves their hands. But whether dispensing the article by the hundred-weight to a retailer, or the latter in his turn by the drachm to a consumer, each pharmaceutist warrants, first, good quality in the article; second, correctness in kind; and, third, precision in following the formula represented by it. § 183. In affixing a label to it bearing his name, and stating it to have been prepared by him, he makes his warranty only the 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 injuries which may have arisen out of defects in its quality, or errors in its composition. So long as the label in question remains attached to the article, it is an affirmation of its good quality and correct composition to each party who relies upon it when buying. For, although the purchaser be himself an apothecary, still, if he purchases on the credit given to the label, any false affirmation which it may convey becomes to that extent a false representation. Through how many druggists' hands soever it may have passed, there is a continuing liability on the part of the first vendor from which he can not escape. § 184. It is doubtless the fact that most articles deteriorate after a while, and it may be inferred from this that what is intended in relation to the liability of the vendor, applies only to the articles at the time they leave his hands. He only warrants their good quality then, but no longer. And his representation affirms that much, no more. Against the operations of time, he can not be expected to insure. For the limit of his responsibility as to possible changes, is the moment of parting with the articles. Hence, all that the law requires of him is, that they shall be what his label or representation affirms them to be. Any other apothecary purchasing of him may remove that label and affix his own name to the drug; but if he affirms it to have been "prepared" by him, in that case he steps into the place of his vendor, and renders himself liable to subsequent vendees for any damage sustained by the latter. But if the original vendor or manufacturer had been guilty of a wrongful act in the composition of the medicine, more notorious, and by so doing, i th abtless the fact that most articles d e, and it may be inferred from this n relation to the liability of the vei articles at the time they leave his hans their good quality then, but no l ntation affirms that much, no tions of time, he can not be expected mit of his responsibility as to pos ment of parting with the articles. Ha quires of him is, that they shall be entation affirms them to be. Any sing of him may remove that label ne to the drug; but if he affirms it red" by him, in that case he steps ndor, and renders himself liable to or any damage sustained by the la vendor or manufacturer had been in the composition of the medi whereby it became dangerous to the lives of others, the fact of a sale to a purchaser ignorant of this, although subsequently dispensing the particular drug over his own name, will not purge the former of his responsibility. § 185. These principles were fully discussed and satisfactorily expounded in a leading case in New York,' the facts of which, together with the law, are stated as follows in the decision of Ruggles, C. J.: “This is an action brought to recover damages from the defendant for negligently putting up, labelling and selling as and for the extract of dandelion, which is a simple and harmless medicine, a jar of the extract of belladonna, which is a deadly poison; by means of which the plaintiff, Mary Ann Thomas, to whom, being sick, a dose of dandelion was prescribed by a physician, and a portion of the contents of the jar was administered as and for the extract of dandelion, was greatly injured, etc. Mrs. Thomas, being in ill health, her physician prescribed for her a dose of dandelion. Her husband purchased what was believed to be the medicine prescribed, at the store of Dr. Foord, a physician and druggist in Cazenovia, Madison county, where the plaintiffs reside. "A small quantity of the medicine thus purchased was administered to Mrs. Thomas, on whom it produced very alarming effects, such as coldness of the surface and extremities, feebleness of circulation, spasms of the muscles, giddiness of the head, dilatation of the pupils of the eyes, and derangement of the mind. She recovered, however, after some time, from its effects, although for a short time 1 Thomas v. Winchester, 2 Selden, 397. One who does an illegal or mischievous act, which is likely to prove injurious to others, is answerable for the consequences which may directly and naturally result from his conduct, though he did not intend to do the particular injury which followed. Vandenburgh v. Truax, 4 Denio, 464. |