prevent injury from the use of drugs, poisons or medicines.53 So it is held that such persons are held liable for the very slightest negligence.54 In one state they are held to the observance of only ordinary care.55 Thus, druggists have been held for negligent mistakes in selling belladonna for extract of dandelion,56 and laudanum for rhubarb,57 and spirits of camphor for camphor water,58 and morphine for quinine, and carbolic acid for spirits of niter,60 and sulphate of zinc for epsom salts,61 and tartaric acid for Rochelle salts.62 Some authorities conclude from the fact of a mistake being made that there is conclusive evidence of a want of due care, and that the apothecary cannot escape liability by showing that he has been extraordinarily careful in general. It is said, too, that he must know the properties of all of the drugs, and be able to distinguish between them, and that he must qualify himself to be able to attend to his business of compounding drugs and vending them so that one drug may not be sold for another, and that when a prescription is presented the proper medicine, and no other, shall be used in mixing and compounding it. And that he cannot escape a liability upon the mere pretext that it was a pure acci 53 Howes v. Rose, 13 Ind. App. 674, 55 Am. St. Rep. 251, 42 N. E. 303. 54 See cases ante, notes, 52, 53. 55 Simonds v. Henry, 39 Me. 155, 63 Am. Dec. 611. 56 Smith v. Hayes, 23 Ill. App. 244; Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455. 57 Norton v. Sewall, 106 Mass. 143, 8 Am. Rep. 298. 58 McCubbin v. Hastings, 27 La. Ann. 713. 59 Brunswig v. White, 70 Tex. 504, 8 S. W. 85. 60 Hall v. Rankin, 87 Iowa, 261, 54 N. W. 217. 61 Brown v. Marshall, 47 Mich. 576, 41 Am. Rep. 728, 11 N. W. 392; Walton v. Booth, 34 La. Ann. 913. 62 Hawes v. Rose, 13 Ind. App. 674, 55 Am. St. Rep. 251, 42 N. E. 303. dent, and that he exercised extraordinary care. This, therefore, approaches an absolute liability.63 The better rule appears to be that the gist of all actions against druggists for damages is the want of care and against the rule of absolute liability; that while the very fact of a mistake may be evidence of a want of due care, it cannot dispense with a proof of actual negligence. The general rule that the mistake or negligence of a pharmacist must be the proximate cause of the injury to hold him liable applies."5 § 380. Same Continued-Wholesaler and RetailerTheir Liability. The question of the liability of manufacturer and retailer in the handling of dangerous articles, including poisons, has been incidentally referred to at a former section;66 and no further reference will be made to the subject here. The duty of the druggist is not alone to the person to whom he sells drugs, but it extends to all persons to whom his negligence has been the proximate cause of injuries without any contributory negligence on their part. Consequently, it is held that the wholesaler who sells to the retail druggists a bottle of belladonna labeled "dandelion" has been held liable to one to whom the retailers sell some of the contents thereof as extract of dandelion.68 Of course, the wholesaler cannot be held liable if the mistake is not the proximate cause of the injury, as, for example, in the sale of sulphide of antimony for black oxide of manganese, both being 67 63 Fleet v. Hollencamp, 13 B. Mon. 219, 56 Am. Dec. 563; Hamsford v. Payne, 11 Bush, 380. 64 Brown v. Marshall, 47 Mich. 576, 41 Am. Rep. 728, 11 N. W. 392; Beckwith v. Oatman, 43 Hun, 265. 65 Rabe v. Sommerbeck, 94 Iowa, 656, 63 N. W. 458. 66 Ante, secs. 7, 244. 67 Peters v. Johnson (W. Va.), 41 S. E. 190. 68 Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455; Peters v. Johnson (W. Va.), 41 S. E. 190. 69 harmless drugs, where the injury results from the combination of the two drugs by the purchaser, which forms an explosive. On the other hand, the mistake on the part of a wholesaler does not excuse the retailer who is negligent in not discovering the real nature of the drug he is selling. This rule imposes one of the most important duties upon the druggist in knowing and ascertaining the nature of all the drugs which he handles.70 The retail druggist is also liable for the negligent act of his clerk the same as in any other occupation or business.71 There is no liability on the part of the druggist who recommends a prescription and fills the same accurately, where he is guilty of no bad faith, and there is nothing dangerous to life in the medicine; 72 nor for the mistake of one who helps himself to a drug gratuitously, even though his mistake is caused by the fact that the druggist himself made the same mistake;" 73 nor for refusal to fill a prescription.74 In a recent case arising with respect to the sale of patent or proprietary medicine furnished by the compounder to druggists, 'it is held that the retailer is not required to analyze the contents of each bottle or package, and cannot be charged with negligence by delivering the same to a consumer with the label of the patentee on it, for any injury occurring to the purchaser from its use, in this case death resulting.75 69 Davidson v. Nichols, 11 Allen, 514. 70 Hawes v. Rose, 13 Ind. App. 674, 55 Am. St. Rep. 251, 42 N. E. 303. 71 Hargrave v. Vaughn, 82 Tex. 347, 18 S. W. 695; Brown v. Marshall, 47 Mich. 576, 41 Am. Rep. 728, 11 N. W. 392; McCubbin v. Hastings, 27 La. Ann. 713. 72 Ray v. Burbank, 61 Ga. 505, 34 Am. Rep. 103. 73 Gwynn v. Duffield, 66 Iowa, 708, 55 Am. Rep. 286, 24 N. W. 523; S. C., 61 Iowa, 64, 47 Am. Rep. 803, 15 N. W. 594. 74 Tarleton v. Legart, 46 La. Ann. 1368, 49 Am. St. Rep. 353, 16 South. 180. 75 West v. Emanuel, 198 Pa. St. 180, 47 Atl. 264. § 381. Same Continued Contributory Negligence. The rule of contributory negligence applies if the purchaser himself is guilty of contributory negligence as a proximate cause of the injury in which case there can, of course, be no recovery.76 76 Gwynn v. Duffield, 61 Iowa, 64, 47 Am. Rep. 803, 15 N. W. 594; Wohlfahart v. Beckert, 92 N. Y. 490, 44 Am. Rep. 406; Davis v. Guarnieri, 45 Ohio St. 470, 4 Am. St. Rep. 548, 15 N. E. 350. CHAPTER XXVI. INJURY TO CONSTITUTIONAL RIGHT OF REPUTATION-BY SLANDER AND LIBEL. § 382. Slander and libel, defined and explained. §383. Defamation defined. Manner and form of publication. § 387. Publication continued-Defamatory matter must be understood and heard by third person. § 389. § 390. § 388. Liability of persons republishing or repeating. Reputation and character distinguished. Defamatory matter must be false to give rise to a civil action-Truth as a defense. § 391. Same-Proof of truth. § 392. § 393. Injurious representations-Classes-Per se-Per quod. § 394. Subject further considered. § 395. Same continued-Imputing contagious disease. § 396. § 397. Words actionable per se-Spoken of one in his occupation. § 398. Particularity of allegation and proof when special damage must be shown. § 399. Words defamatory per se in libel. $ 400. Excuses-Privileges-Absolute and qualified-ClassificationGeneral doctrine. § 401. Absolute-Qualified privilege distinguished. § 402. Privileged through duty to public-Legislature. Same-Judicial bodies. § 403. § 404. Same-Executive communications. § 405. Same-By the public-To public officials. § 406. Same-Quasi public-Churches, lodges, etc. § 407. Privileged cases-Private-To self-Defending attack. § 408. Privileged cases-To persons having interest in subject matter-Confidential or business affair. $409. Freedom of press-Newspaper privilege-Specially of re ports. |