"2. Besides, the label was a continuing authority or direction by the defendant for the use of the poison, and he was bound to indemnify against the acts which it was likely to cause when sold in that condition.1 "VI. The rule contended for by the defendant, that each vendor is liable only to his immediate vendee, has no application in the present case. "1. This rule is founded on the principle that a right or duty wholly created by contract, can only be enforced between the contracting parties. The case of Wright v. Winterbottom, 10 Mees. & Wels. 109, was decided on this principle, the declaration being expressly on a duty created by contract and not by law. In The Mayor, &c. v. Cunliff, 2 Comst. 165, each count was on an alleged duty created by law; but the law being void, the allegation as to the duty could not be maintained. "2. Nothing was decided in either of the above cases which interferes with the right to maintain the present action. The duty violated by the defendant was not created by contract, but by law, every one being under an obligation to abstain from acts tending naturally and probably to endanger life. Besides, both cases contain dicta3 which show that the principles on which the present action is based were not intended to be denied. "VII. In any view of the case, the defendant, it must be admitted, is ultimately responsible for the injury to Mrs. Thomas, unless those who have been the unconscious agents of the wrong are to bear the burden, and the author of it escape. 994 1 Cro. Jac. 471; 12 Mod. 639; 23 Eng. C. L. R. 41; Id. 52; 28 Id. 220; 3 Metc. 469; 4 Denio, 311; 2 Comst. 180; 19 Wend. 345. 25 Mees. & Welsb. 283. 310 Mees. & Welsb. 114; 2 Comst. 180. 2 Saund. 150; Willes' R. 401; 2 H. Blacks. 350; 4 Wend. 492; Co. Litt. 348, a. LIABILIT WA SC $18 dealer, and co and ca essent or ven penser ity to no lor tary rials, manu fore, com for and was a continuing authority ded for by the defendant, th ded on the principle that ar ecided in either of the above cass 774 639; 23 Eng. C. L. R. 41; Id. 52; 28 2 Comst. 180; 19 Wend. 345. 2 Comst. 180. R. 401; 2 H. Blacks. 350; 4 Wend. 49: CHAPTER III. LIABILITIES OF DISPENSING PHARMACEUTISTS FOR NEGLIGENCE, WANT OF SKILL, OR UNAUTHORIZED PUBLICATION OF PRESCRIPTIONS. § 188. In passing from the mere sale of drugs as a dealer, warranting their good quality, to the dispensing and compounding of them as a profession requiring skill and carefulness, the character of the apothecary changes essentially. In the former case he is simply a druggist or vendor of medicines, in the latter he becomes a dispenser or compounder, and, as such, allied in responsibility to the physician. In this new position his contract is no longer one simply of sale, but he passes into a mandatary for hire, like any workman who both furnishes materials, and subsequently, by the application of his skill, manufactures them into required articles. Skill, therefore, enters into the compounding of medicine to a degree commensurate with the nature of the service rendered, for pharmacy constitutes both a science and an art in itself, and its practitioners consequently incur all the responsibilities belonging to the discharge of professional duties. To say that the apothecary or pharmaceutist is bound to possess the ordinary skill of his profession, is only to repeat what has heretofore been said in relation to the physician. And in compounding and dispensing his drugs, he is further bound to exhibit an amount of care proportioned to the risks and exposures of the business; and the degree required is higher necessarily where life or limb are endangered, or a large amount of property is involved, than in other cases. This rule has always been enforced wherever the nature of the occupation carried on was such, as, through negligence might affect health. Thus, it has been held that if a baker directs his servant to make bread containing a specific quantity of alum, which, when mixed with other ingredients, is innoxious, but in the execution of these orders the agent mixes up the drug in so unskillful a way that the bread becomes unwholesome, the master will be liable to be indicted.1 In a recent case against a druggist's clerk, who was tried and convicted of manslaughter before the Court of Oyer and Terminer of Philadelphia,2 for gross negligence in miscompounding a prescription, where, instead of furnishing assafoetida, as called for by the prescription, (which had been already compounded five or six times by the defendant and his father,) he supplied atropia, three grains being given in four pills, whereas one-sixth of a grain is the largest dose ever given for medicinal purposes, and the patient losing her life in consequence of taking the same. Judge F. C. Brewster, in his charge to the jury, said: "We are of opinion that there is no question here of grades of crime, and on this account we shall not trouble you with the definitions of voluntary homicide, or of any higher offence. The District Attorney has, according to our views of the case, very properly abandoned the first count of the indictment, and the only question, therefore, is whether the defendant should be convicted or acquitted of the remaining six counts, which, in vari 13 M. & S. 10; 4 Blacks. Comm. 162. 2 Comm. v. Joseph H. Bower, Phila. Oyer and Terminer, April Term, 1869. ous form This cr act, not doing a skill, w on Evi lief or law re drugs knowle knowle to the held t with H as a c ment functi he fai “ཀྭ neglig medi a pre of v be sl mix tion such a wa the pre diti dea amount of property is inva maining six counts, which, in r Comm. 162. er, Phila. Oyer and Terminer, April Ter ous forms, charge the offence of involuntary manslaughter. This crime is thus defined: "The doing of an unlawful act, not felonious, nor tending to great bodily harm, or doing a lawful act without proper caution or requisite skill, whereby one undesignedly kills another.' (3 Greenl. on Evid. p. 128.) The mixing of medicines for the relief or cure of the sick is clearly a lawful act. But the law requires that no person should attempt to deal out drugs as a matter of business or profit without competent knowledge or skill. So, too, he must not only possess knowledge and skill, but he should employ those attributes to the best of his ability, and failing herein, he should be held to a strict responsibility. We should, deal, however, with human nature as we find it, and hold no man liable as a criminal, unless he assume the duty of an employment knowing that he is incompetent to discharge its functions or unless, possessing the proper information, he fail to employ it. "The test, therefore, in such cases, lies in the word negligence. If a man wholly ignorant of the science of medicine and chemistry undertakes for profit to compound a prescription, and poisons another, he might be convicted of voluntary manslaughter. So, too, if ever so expert, be should undertake the same delicate employment, and mix the drugs in the dark, or while in a state of intoxication, and thereby cause death, this might be evidence of such gross negligence as would justify a jury in finding a wanton and reckless disregard of life; and here again the offence would be voluntary manslaughter. "On the other hand, if the person compounding the prescription was a skillful druggist, and in a proper condition, but, by omitting some minor act of care, occasioned death, he would be guilty of involuntary manslaughter. "And still again, if, without any fault or want of proper care, the wrong drug found its way into the medicine compounded, and death resulted, the act would be simple misadventure, and not indictable. "It is the duty of the court, in these cases, not merely to state general principles, but to endeavor to assist the jury in the application of the law to the facts, which is, after all, the most difficult part of your labors. The defendant's counsel has admitted that the defendant made up this prescription, and there is no dispute of the fact that the taking of the pills caused the death of Mrs. Hecht. "The sole question then is, did the defendant exercise reasonable care in the reading of the word called by the Commonwealth assafoetida, and in the compounding of the prescription? The case has very properly been so argued by the counsel on both sides. The Commonwealth contends that the word was plainly written-that the nature of the drug used was a warning to the defendant, and that a case of negligence has been made out against him. It is urged upon the other side that the word is not legibly written; that it might be mistaken for atropia; that the defendant has devoted many years to the study of his profession, and that he enjoys an excellent character for skill as a druggist and for peace as a citizen. You will have the prescription with you. You must examine it, and upon it and all the evidence in the case, ask yourselves this question: Did the defendant employ reasonable care in the preparation of this medicine? This involves two points: First, his reading of the word referred to; second, his knowledge of the deadly character of the drug he used. For though he innocently mistook the language of the prescription, yet if the exercise of reasonable care wo which w "Th drugs, not ned is the does n tingen intellig fidelity is for cence. you m of the ably c acquit WH tary that pari fall "WH be de meas taliti Wha negli ties, Wou an e whi mea men |