fli^iiilnMiliiilillilllll B 3 flMfl MSS LIBR^RV University of California. OIKT OK A TREAT^ISE PHARMACAL JURISPRUDENCE A THESIS ON THE LAW IN GENERAL HARLEY R. WILEY, A B., L L. B Lecturer ( n Pharmacal Jurisprudence l^NiviiRsiTY f)K California 1904 THE HICKS-.IUDD COMPANY, i'lblishkrs, 21-2:! First Street, San Francisco, Cai /u Copyrighted, 1904, By Harley R. Wiley. PREFACE. The preparation of this book was suggested by the inconvenience experienced through the want of some treatise, or collection of authorities, on pharmacal law. On receiving his appointment as lecturer in this depart- ment of jurisprudence the author found himself upon a path hitherto almost untrodden, and with ver)' little to aid him in his efforts to present the subject in a con- nected and scientific form. It was a matter of some surprise that no text-book had yet been produced aiming at a presentation of the principles, with a collection of the leading cases, which define the legal aspects of a profession so important as that of pharmacy. It is intended that this volume shall occupy a place heretofore vacant in the category of legal text-books and it is hoped that those who examine its contents will do so with such indulgence as may seem due to the work as a pioneer in its peculiar field. Haklev R. Wiley. CONTENTS. PAGE Table of Cases 3 Introductory Thesis on the Law in General 11 Chapter I — Definitions and Scope of the Subject 63 Chapter II — Historical \'ievv of the Subject 77 Chapter III — Legal Limits of Pharmacy 93 Chapter IV — The Common Law Right to Practice Phar- macy, and the Reason for Statutory Restrictions on the Right 115 Chapter V — Qualifications of Pharmacist and Statutory Regulations 128 Chapter \'I — Constitutionality of Laws Regulating the Prac- tice of Pharmacy 136 Chapter VII — License Under Statute 158 Chapter VIII — Explanatory of Contracts 164 Chapter IX — Contracts of Druggist and Pharmacist 169 Chapter X — Liability of Retail Druggist for Negligence 176 Chapter XI — Liability for Error in Preparing Prescriptions.. 197 Chapter XII — Liability of Manufacturing Pharmacist 210 Chapter XII I — Contributory Negligence 223 Chapter XIV— Special Features, Civil and Criminal 231 Chapter X\' — Important Business Features 239 Chapter XVI — Insurance on Drugs 247 Chapter XVII— The Pharmacist in Court 255 ALPHABETICAL TABLE OF CASES. AlH'inethy v. Hutchinson, 3 L. j. Cli. L'OH, 1 H . c\; T 28 239 Ablenian v. IJootli, 21 How. 50(), Ki L. Ed. 16'J, 5 U. S. Notes 885 141 Adams v. Heisel, 31 Fed. Rep. 280 2i2 Adler v. \Vhitbeck, 44 Ohio St. 575, 9 X. E. (172 140 Alcott V. Barber, 1 Wend. 526 98 Allan V. State S. S. Co., 132 N. V. 95, 28 Am. St. Rep. 556, 30 N. E. 482 232 Barbier v. Connolly, 113 U. S. 31, 5 Sup. Ct. Rep. 357, 28 L. Ed. 923, 10 U. S. Notes 947 120 Barrett V. Belshe, 4 Bibb. 349 184 Bergen, In re, 31 Wis. 386 68 Bloom V. Soberski, 8 Misc. Rep. 311, 28 N. V. Supp. 731.... 162 Boardman v. Merrimack Mut. Fire Ins. Co., 8 Cush. 583 ... 253 Bonaparte v. Camden, Etc., R. R. Co., 1 Bald. 220, P^ed. Cas. No. 1617 136 Briscoe v. Bank of iventucky, 11 Pet. 257, 9 L. Ed. 709, 3 U. S. Notes 675 138 Brown v. Marshall, 47 Midi. 576, 41 Am. Rep. 728, 11 N. W. 392 193, 235 Brown V. People, 11 Colo. 109, 17 Pac. 104 147, 162 Bullingerv. Mackey, 15 Blatchf. 550, Fed. Cas. No. 2127.... 239 Burch V. Spencer, 15 Hun. 504^ 170 Burgess v. Sims Drug Co., 114 Iowa 275, 89 Am. St. Rep. 359, 54 L. R. A. 364, 86 N. W. 307 222 Calder v. Bull, 3 Dall. 386, 1 L. Ed. 648, 1 U. S. Notes 57... 138 California Fig Syrup Co. v. Frederick Stearns & Co., 73 Fed. Rep. 812, 43 U. S. App. 2.34, 20 C. C. A. 22, 33 L. R. A. 56 243 Carpenter V. Blake, 57 N. Y. 12 232 Carrigan v. Lycoming Fire Ins. Co., 53 \'t. 41S, 3S Am. Rep. 687 252 Chambers v. Chambers, 2 A. K. Marsh. 349 183 Chicago, Etc., Ry Co. v. Freeman, 6 111. App. 608 224 Civil Rights Cases, 109 U. S. 3, 3 Sup. Ct. Rep. 18, 27 L. Ed. 835, 10 U. S. Notes 594 141 College of Physicians v. Rose, 3 Salk. .17, (i Mod. 44 86 Collins V. Carnegie, 1 Adol. iS: El. 695 162 4 ALPHABETICAL TABLE OF CASES. PAGE Collins V. Farmville Insurance and Banking Co., 79 N. C. 279, 28 Am. Rep. 322 250 Colwell V. State, 37 S. E. 129, 112 Ga. 75 135 Commonwealth v. Baur, Phila., Oyer & Terminer, April, 1869 234 Commonwealth v. Butler, 99 Pa. St. 540 139 Commonwealth v. Hoviour, 23 Ky. Law Rep. 1724, 66 S. \V. 3 163 Commonwealth v. Maxwell, 27 Pa. St. 456 140 Commonwealth v. Powell, 22 Ky. Law Rep. 1932, 62 S. \V. 19 135 Cook V. People, 125 111. 278, 17 N. E. 849 235 Corfield v. Coryell, 4 Wash. C. C. 371, Fed. Cas. No. 3230.. 19 Davidson V. Nichols, 11 Allen. 514 235, 237 Dent V. West Virginia, 129 L. S. 114, 9 Sup. Ct. Rep. 231, 32 L. Ed. 623, 11 U. S. Notes 684 144, 147 Dental Examiners v. People, 123 111. 227, 13 N. E. 201 159 Dickerson v. Colgrove, 100 U. S. 584, 25 L. Ed. 618, 9 U. S. Notes 872 66 Dickson v. Jordan, 10 Ired. Law 166, 53 Am. Dec. 403 171 Dixon V. Bell, 5 Maul. & Sel. 198, 1 Stark. 287, 17 R. R. 308 219 Donaldson v. Beckett, 4 Burr. 2408 239 Eastman v. State, 109 Ind. 278, 58 Am. Rep. 400, 10 N. E. 97 147 Eastham v. Commonwealth, 20 Ky. Law Rep. 1639, 49 S. W. 795 135 Effinger v. Lewis, 32 Pa. St. 369 66 Ely V. O'Leary, 2 E. D. Smith 261 170 Emerson v. Brigham, 10 Mass. 197, 6 Am. Dec. 10i9 172 Ex parte Heyfron, 7 How. (Miss.) 127 162 Ex parte Spinney, 10 Nev. 323 149, 150 Farmers' & Mechanics' Bank v. Smith, 3 Serg. & R. 68, 6 Wheat. 131, 5 L. Ed. 224, 2 U. S. Notes 65 136 Ferdon v. Cunningham, 20 How. Pr. 154 162 Fleet V. Hollenkemp, 13 B. i\Ion. 219, 56 Am. Dec. 563 170, 172, 174, 196 Fox V. Dixon, 12 N. Y. Supp. 267, 58 Hun. 605 103 Fox V. Glastenbury, 29 Conn. 204 224 Fox V. Territory, 2 Wash. Ter. 297, 5 Pac. 603, 5 West Coast Rep. 339 149, 150 ALPHAI5ETK AI, TAlil.K OF CASES O French V. Maguire, 44 How. Pr. 471 -'.V.) Gdge V. Censors, 63 N. H. 92 KiO Gardner v. Tatum, 81 Cal. 370, 22 Pac. 880, 4 Cal. Notes 554 106 Gee V. Pritchard, 2 Swans. 402, lit K. R. 487 239 (^libbons v. Ogden, 9 Wheat. 1-187, 6 L. Ed. 23, 2 U. .S. Notes 213 138 Gilman v. Philadelphia, 3 Wall. 713, 18 L. Ed. 96, 6 U. S. Notes 556 138 Grigsby v. Breckenridge, 2 Bush. 480, 92 Am. Dec. 509 239 Gwynn v. Duffield, 61 Iowa 64, 47 Am. R-p. 802, 15 N. W. 594 224 Hanford v. Payne, 11 Bush. 380 189 Harding v. People, 10 Colo 387, 15 Pac. 728 159 Hargan v. Purdy, 93 Ky. 424, 14 Ky. Law Rep. 383, 20 S. W. 434 162 Hart V. Wright.a7 Wend. 267 171 Hewitt V. Charier, 16 Pick. 353 147, 162 Heyfron, Ex parte, 7 How. (Miss.) 127 162 Higden v. Higden, 2 A. K. Marsh. 42 182 Hinckley v. Cape Cod R. R. Co., 120 Mass. 257 224 Hocum V. Witherick, 22 Minn. 152 224 Holden v. Dakin, 4 Johns. 421 171 Hoover V. Peters, 18 Mich. 51 170 Hostetterv. Fries, 17 Fed. Rep. 622, 21 Blatchf. 339 242 Humphreys v. Comline, 8 Blackf. 516 171 Humphrey's Specific Homeopathic Medicine Co. v. Wenz, 14 Fed. Rep. 252 242 Hyatt V. Boyle, 5 Gill & J. 110, 25 Am. Dec. 276 171 Hyland v. .Sherman, 2 E. D. Smith, 234 170 lUidge V. Goodwin, 5 Car. & P. 190 218 In re Bergen, 31 Wis. 386 68 fohnson v. Mcintosh, 8 Wheat. 384, 4 L. Ed. 681, 2 U. S. Notes 201 136 Johnson v. State (Tex. Crim.), iH) S. W. 552 135 Johnson v. Union M. & F. Ins. Co., 127 Mass. 555 253 Jones V. George, 56 Tex. 149, 42 Am. Rep. 689 174 Justice V. Lang, 42 N. Y. 497, 1 Am. Rep. 576 164 Kelly V. Home Ins. Co., 97 Mass. 288 2.5.3 Lanzer v. Unterberg, 9 Misc. Rep. 210, 29 N. Y. Supp. 683.. 162 Lawrence v. National F'ire Ins. Co., 127 Mass. 557 253 6 ALPHAIiETICAL TABLE OF CASES. PAGK Lindsley v. Bushnell, 15 Conn. 235, 3S Am. Dec. 79 185 Little V. Hackett, IIH U. S. 371, 6 Sup. Ct. Rt-p. 3'.ll, 2H L. Ed. 652, 11 U. S. Notes 30 223 Longmeed v. Holliday, 6 Eng. Law & Eq. 5H2 21!) Lord V. Grow, 39 Pa. St. 88, 80 Am. Dec. 504 171 Losee v. Buchanan, 51 N. Y. 476, 10 Am. Rep. 623 232 Louisiana v. Mayor of New Orleans, 109 U. S. 283, 3 Sup. Ct. Rep. 211, 27 L. Ed. 936, 10 U. S. Notes 628 165 Lynch v. Nurdin, 1 Adol. & El. W. S. 29, 4 P. & D. 672, 1 Q. B. 29, 10 L. J. O. B. 73, 5 Jur. 797 21S MacDougall v. Central R. R. Co., 63 Cal. 431, 4 Cai. Notes 99 224 Mallory v. Griffey, 85 Pa. St. 275 224 Martin v. Temperiey, 4 Q. B. 298, 3 G. & D. 497, 12 L. j. g. B. 129, 7 Jur. 150 ." . 222 McCubbin v. Hastings, 27 La. Ann. 715 198, 222 McDonald v. Snelling, 14 Allen 290, 92 Am. Dec, 768 & Note 237 McLane v. Sharp, 2 Harr. (Del.) 481 185 McNaughten V. Joy, 1 Weekl. Notes Cas. 470 170 McVeigh v. Gentry, 72 App. Div. 598, 76 N. Y. Supp. 535 196, 219 Merills v. Tariff Manufacturing Co., 10 Conn. 388, 27 Am. Dec. 682 and Note 185 Miller V. Scherder, 2 N. Y. 267 170 Mills V. Taylor, 4 Burr. 2362 240 Morris v. Chicago, Etc. R. R. Co., 45 Iowa, 29 226 Morris v. Piatt, 32 Conn. 75 232 Morison v. Moat, 9 Hare, 241 239 Munkley v. Hoyt, 179 Mass. 108, 60 N. E. 413 163 Munn V. Illinois, 94 U. S. 145, 24 L. Ed. 77, 9 U. S. Notes 21.. 121 Neanow v. Uttech, 46 Wis. 590, 1 N. W. 221 223 Nettleton v. Dinehart, 5 Cush. 543 238 Noel V. People, 187 111. 587, 79 Am. St. R.p. 238, .58 N. E. 61ii 149 Norton v. Booth, 34 La. Ann. 913 194 Norton v. Sewall, 106 Mass, 143, 8 Am. Rep. 298 222 Orr V. Meek, 111 Ind. 40, 11 N. E. 787 147 People V. Fisher, 83 111. App. 114 133 People V. Lee Wah, 71 Cal. 80, 11 Pac. 851, 4 Cal. Notes 313 106 People V. McCoy, 125 111. 289, 17 N. E. 786 KK) People V. Moorman, 86 Mich. 433, 49 N. W. 263 153 People V. Phippin, 70 Mich. 6, 37 N. W. 888 149, 150 ALPHA IJi: THAI. lAIU.E Ol" CASES. / People V. Rontey, 21 N. V. St. Rep. 174, 4 N. V. Supp. 2:55, 17 N. Y. 624, 22 N. E. 112S 2.31 People V. Turner, 1 Cal. 150, 52 Am. Dec. 295. and Note, 1 Cal. Notes, 13 162 People V. York Co., 80 111. App. 102 135 Peters v. Johnson, 50 W. Va. »)44, 41 S. E. 190, 57 L. K. A. 428, 88 Am. St. Rep. 909 19(), 219 Pierce v. State, 13 N. H. 536 150 Pollard V. Allen, 96 Me. 455, 52 Atl. 924 134 Presser v. Illinois, 116 U. S. 263, 6 Sup. Ct. Rep. 580, 29 L. Ed. 615, 11 U. S. Notes 27 140 Railroad Co. v. [ones, 95 U. S. 439, 24 L. Ed. 506, 9 U. S. Notes 279 ..". 224 Railway Company v. Alabama, 128 U. S. 96, 9 Sup. Ct. Rep. 28, 32 L. Ed. 352, 11 U. S. Notes 621 151 Ray V. Burbank, 61 Ga. 505, 34 Am. Rep. 103 235 Regina v. Haines, 2 Car. & K. 368 217 Regina v. Svvindall, 2 Car. & K. 232, 2 Cox C. C. 141 217 Reid V. Morton, 119 111. 118, 6 N. E. 414 140 Ronker v. St. John, 21 Ohio Cir. Ct. Rep. 39 224 Salisbury v. Stainer, 19 Wend. 159, 32 Am. Dec. 437 171 Sharpless v. Mayor of Philadelphia, 21 Pa. St. 160, 2 Am. Law Reg. 25, 85, 59 Am. St. Rep. 759 and Not 137 Shaw Stocking Co. v. Mack, 12 Fed. Rep. 710, 21 Blatchf 1 242 Simonds V. Henry, 39 Me. 156 232 Skirving V. Ross, 31 Upper Canf 423 162 Smith V. Alabama, 124 U. S. 465, 8 Sup. Ct. Rep. 564, 31 L. Ed. 508, 11 U. S. Notes 483 151 Smith V. Sherman, 4 Cush. 408 238 Smith V. Tracy, 2 Hall (N. Y.) 465, 501 100 Spaulding v. Alford, 1 Pick. 33 147 Spinney, E.\ parte, 10 Nev. 323 149, 150 State V. Creditor, 44 Kan. 565, 21 Am. St. Rep. 306, 24 Pac. 346 147, 162 State V. Davis, 76 Mo. App. 586 134 State V. Donaldson, 41 Minn. 74, 42 N. \V. 781 149, 150, 235 State V. Fleischer, 41 Minn. 69, 42 N. W. 69(1 1.59 State V. Forcier, 65 N. H. 42, 17 Atl. 577 149, 150 State V. Freeman, 38 N. H. 426 150 State V. Green, 112 Ind. 462, 14 N. E. 352 149, 150, 162 State V. Hathaway, 115 Mo. 36, 21 S. W. 1081. ..149, 150, 154, 162 b ALPHABETICAL TABLE OF CASES. State V. Hipp, 38 Ohio St. 219 18y State V. Jordon, 87 Mo. App. 420 ]:^4 State V. Marshall, 64 N. H. 649, 15 Atl. 210 150 State V. Schultz, 11 Mont. 429, 28 Pac. 643 161 State V. Vanderslius, 42 Minn. 129, 43 N. W. 7SM, 6 L. R. A. 119 14S, 162 State V. Van Doran, 109 N. C. 864, 14 S. E. 32 104 State V. Workman, 75 Mo. App. 454 130 Storm V. Commonwealth, 105 Ky. 619, 20 Ky. L;ivv Kep. 1434, 49 S. W. 451 '. '. 135 Suffolk Co. V. Shaw, 21 App. Div. 146, 47 N.Y. Supp. 349..134, 135 Tennessee v. Davis, 100 U. S. 257, 25 L. Ed. 648, 9 U. S. Notes 823 142 Tessymond's Case, 1 Lewins' Crown Cas. 169 189, 217, 231 Thomas v. Winchester, 6 N. Y. (2 Seld.) 397, 57 Am. Dec. 455 and note 196, 210, 237 Thompson v. Ashton, 14 Johns. 316 171 Thompson v. Staats, 15 Wend. 395 102 Timmermanv. Morrison, 14 Johns 369 96.98, 99 Trade-Mark Cases, 100 U. S. 82, 25 Law Ed. 550, 9 U. S. Notes 792 242 Underwood v. Scott, 43 Kan. 714, 23 Pac. 942 105 United States v. Cruikshank, 92 U. S. 542, 23 L. Ed 588, 8 U. S. Notes 837 138, 141 United States v. Harris, 106 U. S. 629, 1 Sup. Ct. Rep. 609, 27 L. Ed. 290,- 10 U. S. Notes 430 141 "United States v. Reese, 92 U. S. 221, 23 L, Ed. 563, 8 l\ S. Notes787 140 Van Bracklin v. Fonda, 12 Johns. 468, 7 Am. Dec. 339..170, 187 Washington Etc. R. R. Co. v. Gladmon, 15 Wall 401, 21 L. Ed. 114, 7 U. S. Notes 909 223 Wellington v. Downer Kerosene Oil Co., 104 Mass. 64 237 Wells V. Phelps, 4 Bibb. 563 183 Westchester Co. v. Dressner, 23 App. Div. 215, 48 N. ^'. Supp. 853 133 Waymire v. Wolfe, 52 Iowa 533, 3 N. W. 541 226 Wheaton v. Peters, 8 Pet. 591, 8 L. Ed. 1055, 3 U. S. Notes, 482 239 Wilkinson v. Leland, 2 Pet. 656, 7 L. Ed. 542, 2 U. S. Notes 883 136 BO^^CW.NJCWV^/""' ■VKTV-'Vl AI.PHARETICAI. TAIU.K OF CASES. 9 VVinterbottom v. Wright, 10 Mtes. cS: W. 109, 11 I.. J. Exch. 415 L>16 Wise V. Morgan, 101 Tenn. 273, 45 S. W. !»71 134 Wohlfahrt v. Beckert, 12 Abb. N. C. 478 233 Wright V. Hart, 18 Wend. 449 170 Wright V. Lanckton, 19 Pick, 288 147 Vovatt V. Winyard, 1 J. & W. 394 239 i'HARMACAL JURISPRUDENCE. Introductory Thksts ox the La\y in General. Before l)eiiimiiiii>- the study of any special branch of jnrisprndence, the stndeut will derive benefit from a cursory 2, la nee at the broad field of the la^y in general, of which the subject of this treatise is a snuill but growing- department. Whether the practicing attorney will be profited or not by these introductory thoughts will depend, in a measure, upon how wide and thorough haye been his studies preparatory for his professie deemed absolutely void, and thereafter will receive recognition nowhere as a law. 16 AMERICAN SYSTEM. The American citizen has been rightly taught to look upon the Tonstitution of the United States as being, in a political sense, the ''rock of his salvation." It certainly is the foundation upon which all other foundations in our complex national structures must rest, and it is also the barrier beyond which no daring adventurer in law or statecraft may hope to pass unchallenged. In the vast fields of American legislation and politics much questionable work is done, but the strong fence of the Constitution hems those fields about and insures from destruction the beautiful gardens that Liberty loves to tend. The Constitution came from The People and can be changed only by The People. It is their potent means of restraint upon both those who make the laws and those Avho administer them, and by its reassuring presence, he who is troubled during times of political distrust and disturb- ance is encouraged to rely upon the stability of a government, the vital forces of which are thus ever subject to a restraining hand. As stated above, the laws of the United States and the treaties thereof are both, equally, parts of the supreme law of the land. Therefore, if a law of the United States, made in pursuance of the Constitution, and a treaty, made under the authority of the ITnited States, are found to be in conflict with each other, since they are of equal force, the one last made must necessarily super- sede the otlK^r, as being the latest expression of sovereign will. PHARMACAl. JURISPRUDENCE. 17 The second branch of the written law of this country includes the constitutions of the several States of the Union, and the laws enacted by each State in pursuance of its constitution. Neither the State constitutions nor the State laws are a part of the supreme law of the land ; hence, whenever they come into conflict with any law of the character of those embraced in our first division, they must yield to it. In fjeneral, the constitution and laws of each State are of force only within the limits of its own territory. By comity between States, how- ever, Avhich is a sort of international courtesy, one State will apply within its own territory the laws of another State in matters that concern the latter or its citizens. By comity, the corpora- tions of one State are permitted to pursue a laAvful business in another State. A marriage, valid in the State where entered into, is valid everywhere. Likewise, a decree of divorce that is valid where iiranted, is valid everywhere. Ac- tions for injuries to persons or to personal property and actions u])on contract may be commenced wherever the defendant can be served with ])rocess, rei^ardless of the juris- diction in which the cause of action arose. On the other hand, it may happen tliat by one State a right of action is i>iven that other States are not expected to recognize, such as the rii^ht to recover a statutory ])enalty. In the latter case the rioht to recover is ^iven bv statute and can 18 AMERICAN SYSTEM. be euforeed only witliiu the jurisdiction where the statute is law. Of the same nature is a statutory right of action given by a State against any person, who, by wrongful act, neglect or de- fault, shall cause the death of another. At the common law, no right of action rose against one for thus causing the death of another; hence, States whose laws do not give such a right, will not enforce it within their territory. Again, all actions to recover land, or for injuries to real estate, are held to be local in their nature, and must be commenced in the jurisdiction where the land is situated. The examples given above will serve as illus- trations of the nature and limits of interstate comity. It may be noted here that this principle, as recognized and acted upon between States, is Identical with that which underlies the comity of nations, and is governed by the rules of pri- vate international law. It is one of the pleasing products of civilization, tending greatly to lessen the inconvenience which must naturally arise through the conflict of laws enacted by different States possessing sovereign powers. There are some cases, arising from interstate relations, that the Tonstitution of the ITnited States has not left to be adjusted by comity, but concerning wdiich positive rules have been laid down. In Article VI it is provided that "Full faith and credit shall be given in each State to the public acts, records, and judicial proceed- PIIARMACAL JURISPRUDENCE. 19 ings of every otlier State. And the (\)iii>Tess may by general laws ])i'('S(iibe tlie manner in which such acts, records aiid ])r(M('('(liinj;s shall be proved, and (he elfecl (heicor." Section - of the same artich' ])rovides that "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States,'' Concerning the "privileges and immunities" re- ferred to by the last section quoted, Mv. Justice Washington, in Corfield vs. Coryell, 4 Wash. C. C. 371, 380, Fed. Cas. No. 3230, says: ''Pro- tection by the government, the enjoyment of life and liberty, with the right to acquire and pos- sess property of every kind, and to pursue and obtain happiness and safety, subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole; the right of a citizen of one State to pass through or to reside in any other State, for purposes of trade, agriculture,' professional pursuits, or otherwise, to claim the benefit of the writ of habeas corpus, to institute and maintain actions of every kind in the courts of the State, to take, hold, and dispose of property, either real or per- sonal, and an exemption from higher taxes or impositions than are paid by citizens of other States, may be mentioned as some of the princi- pal privileges and immunities of citizens which are clearly embraced by the general description of privileges deemed to be fundamental." 20 AMERICAN SYSTEM. Ill view of the coinpreheiisivp charac-ter of the expression "privile<»es and immunities, *' it is generally conceded to be safest to leave their meaning- open for construction as to each ques- tion that may be raised under them and "to be determined in each case upon a view of the par- ticular rights asserted and denied therein." Nevertheless, the enumeration given by Mr. Jus- tice Washington will at least serve to suggest the nature of the questions that may arise under this provision of the Constitution. This same Section 2 of Article IV provides, also, in its second clause, that "A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in an- other State, shall, on demand of the executive authority of the State from which he fled, be de- livered up, to be removed to the State having ju- risdiction of the crime." We have briefly suggested the outlines of that which constitutes the written or positive law in force within the United States of America. Within their respective jurisdictions, the writ- ten or positive laws referred to, as interpreted from time to time by the judiciary, supersede all other laws. The Constitution of the United States is fundamental and paramount, and with the laws passed by the Congress in pursuance thereof, and the treaties made by the authority of the United States, is supreme throughout the entire Union. The (■onstitutistors of the Welsh, were pressed back to the western shores of the island. In the reign of the Saxon king, Alfred the Great, which commenced in the year 871, each of the several Saxon provinces of the kingdom followed its own local customs; and these dif- fered so widely in the different provinces that the king found it necessary to compile what was known as his Dome-Book, a kind of collection or code of laws for general use throughout the realm. Thus it was that the common law of England began to assume definite form and char- acter. 28 THE COMMON LAW. It should ])v noted at this point, as bearino- upon the character of tlie Enjiilish common hiw, that the Saxons were a l)old, hardy, and free peo- ple, and that their laws partook essentially of the character of the men whom they w(M'e formed to govern. And it was this element of rugged freedom that made the Saxon laws so dear to Englishmen; and to maintain them in their pu- rity through the centuries that followed the Nor- man Conquest, they resolutely opposed the en- croachments of tyrannical kings. Doubtless, to the character of the Saxon laws backed by the spirit of a free people, more than to any other one circumstance, the English speaking people of the world owe their long, free history and the enviable freedom of their present institutions — institutions Avhich Ave are disposed to consider the very best combinations of law and liberty that civilization has yet developed. King Alfred's code of laws, so carefully select- ed, was not destined to enjoy an altogether un- broken history. Before the reign of this wise and good king began, the Danes, who were then a rude, sea-faring and piratical race, had com- menced their persistent and fierce incursions. With varying success the,y maintained a bloody war against the brave Saxons, who used every available means to repel them from their shores. At last these Danish warriors succeeded in establishing themselves on English S(til, es- pecially along the eastern coast and in the north. PHAKMACAl. jlRISPRUDENXE. 29 With tluMii of course they hrounlit thoir own na- tional customs and usaii;cs to add another olo- meut to the slowly developinp; law of England. As a result, within the immediate vicinity of Danish conquest, which embraced a considerable portion of the country, the laws of Alfred very naturally fell into disuse for tlie time being. Sir William Klackstone, in his commentaries on the laws of Enj»land, speaking of the condi- tion of the laws of that country subsequently to the Danish invasion and establishment, says: "About the beginning of the eleventh century, there were three principal systems of laws pre- vailing in different districts: 1. The Mercen- Lage, or ]Mercien laws, which were observed in many of the midland countries, and those bor- dering on the principality of Wales, the retreat of the ancient Britons; and therefore very prob- ably intermixed with the British or Druidieal customs. 2. West-Saxon Lage, or laws of the West-Saxous, which obtained in the countries to the south and west of the island. These were probably much the same with the laws of Alfred above mentioned, being the municipal law of the far more considerable part of his dominions, and particularly including Berkshire, the seat of his peculiar residence. 3. The Dane-Lage, or Dan- ish law, the very name of which speaks its origin and composition. Tliis was ])rinci])ally main- tained in tlie rest of tlie midhmd counties, and also on the eastern coast — the parts most ex- 30 THE COMMCW LAW. posed to the visits of that piratical people. As for the very northern provinces, they were at that time under a distinct government." About the time referred to by this eminent jur- ist, the laws of the kingdom underwent another collection and revision by Edward the Confessor. The seven petty kingdoms of the ancient hept- archy that for a time maintained independent existence prior to Alfred's reign, had long since lost their indentity, and together with the paci- fied Danish provinces, had merged into the single realm of England. Nevertheless, with all this progress toward political unity, there continued to exist this inconvenient want of uniformity in the laws of the kingdom. AVhen Edward the Confessor occupied the throne, the laws of King Alfred were still pre- served in the South and West, but the system that then prevailed could hardly have been rec- ognized as the simple and free code of Alfred. While und(mbtedly it still retained many of the original free principles of the early Saxon laws, they had suffered from contact with the coarser and ruder customs of the Danish race, and the mixture had been still further impaired by the encroachments of several generations of kings. King Edward, known in history as Edward the Confessor, commenced his reign in the year 1042. This monarch, whose early life was pass- ed in Normandy, among a people more polished than the Saxons were at that time, is credited by PHARMACAL JURISPRUDENCE. 31 most Eiiiilisli historians with havinc: made a di- pjest of tiio three systems of law referred to above, and having by this means developed a uniform system for use throui>hout his entire kingdom. Blackstone is of the opiniou that these laws, generally mentioned in histories as the laws of Edward the Confessor, were ''no more than a neAV edition, or fresh promulgation of Alfred's code or dome-book, with such additions and im- provements as the experience of a century and a half had suggested." AVhether this last revision or collection of the Saxon laws is deemed to embrace the laws of Alfred, in the form of a new edition, or to be considered a new code prepared by Edward the Confessor, matters little to the present generation. The fact of most interest to us, and, indeed, to all the English speaking world, remains tlie same in either case; and that is that these laws expressed the free principles of a free people, and were destined to foster a spirit of freedom in whatever land they might be maintained in force. Such were the laws of England in the year of 1006, when, Edward the Confessor having died, Harold succeeded to the royal power. Then fol- lowed the couipiest of England by the Normans. William, Duke of Normandy, styled the Con- queror, claimed to be the rightful successor to the crown of England, landed on the coast with 32 THE COMMON LAW. a gallant ariiij of Norman knights, and there met and defeated the Saxon army in the great battle of Hastings. King Harold died on the battle field, and very shortly afterward Duke William of Normandy was firmly seated on the throne of England. For many years the Saxons Mtrnggled to main- tain the laws of Edward the Confessor against encroachments of their Norman conquerors. Their struggles were not altogether fruitless, but, of course, many of the customs of Normandy were forced upon the con(]uered people. During the reign of King William, by a gen- eral agreement entered into by both Saxons and Normans, what is known in history as the Feu- dal System was adopted as a part of the law of the realm. The feudal system is supposed to have begun in the military Policy of the Celtic nations of northern Europe, including Franks, Goths, Huns^ Vandals and Lombards. Sir William Blackstone, in his commentaries on the laws of England, claims that these i)eople brcmght the system with them from their northern homes, when they overran Southern Europe at the de- cay of the Koman Empire. Ridpath, the his- torian, and some others maintain that the system is of later origin, and that it had its birth and de- velopment among the independent princes and barons of medieval Europe. AVhichever theory may be correct, it is certain that this vigorous PHARMACAL J URISPRUDKN'CE. 33 ])laii of organization was in fnll operation in Europe during tlie middle ages, and that by vir- tue of its strength and efficacy in attaining the ends and puqioses of government, under the conditions then existing, it grew into almost universal favor throughout the civilized world. William the Cuucpieror did not force the feudal system upcm his Saxon subjects in England, but the great barons of the realm found that their country was placed at serious disadvantage in the matter of military organization and strength, as compared with their warlike neighbors on the continent of Europe; and this fact, probably more than any other, led to a favorable disposi- tion among the Saxons toward a system that was proving itself to be so etTective elsewhere. It is true that, owing to the fact that many of the Saxon nobles were slaughtered at the bat- tle of Hastings, and during the troubled times attending the com])lete s^ibjugation of the coun- try, the lands thus left vacant by those killed in battle were apportioned out by the King among his Norman knights and held by them on strictly feudal terms. However, this may be regarded as an incident of coiKjuest, and the fact remains that the feudal system was not generally adopted in England until about twenty years after the battle of Hastings. It was then that the King met the nobles at a place called Sariini, ani)ssessions they had given. Thus the feudal connection was established, a i)roper mili- tary subjection was introduced, and an army of feudatories Avas always ready enlisted, and mu- tually prepared to muster, not only in defense of each man's several property, but also in de- fense of the Avliole, and of eA^ry part of this their neAvly acquired country; the prudence of Avhich constitution AA'as soon sufficiently Aisible in the strength and spirit Avith Avhich they maintained their conquests." The circumstances under Avhicli the English people took upon themselves feudal relations AA^ere someAA'hat different, it Avill be remembered, from those outlined above. In the case of the English, those AA'ho already owneave an abso- lute title by deed or i^ateiit, in which there is Avritteu no stipulation for fealty, esclieat, rent- service or other feu(hil consideration. TouchinrAN CIVIL LAW. a reef and waterfall ; and the bold contonr of its sliores, nnworn by ])oi)nlation, marks a channel wide and deep enouiiii to bear the nnited rivers of a world. While the latter sweeps in from A'ast and fertile valleys, o'er-shadowed by the silent majesty of dead empires ; its banks, wherein every point has been worn to a curve of grace, and every reef chiseled to absolute smoothness, oleam with the polish of a thousand years. Chaste, even severe, in the utter refinement of its outlines, it is silent, smooth, and clear, yet pregnant with suggestions of thrilling depths and irresistible force. Just as the contemplation of classic models has tended toward the tdevation and refinement of modern art, and as the study of the ancient models of literature, in the ({reek and Latin lan- guages, has polished, refined, and elevated the standards of literature in all modern languages, so has the study of the laws of ancient IJome added strength and luster to the jurisprudence of modern times. Nor is this fact surprising, when we take into consideration that for seven hundred years, commencing Avith the close of Grecian su- premacy in the third century before Christ, and extending to the time when the northern barba- rians became nuisters of the decaying empire, in the fifth century of the Christian era, all that the world possessed of learning and refinement was centered in Rome, its capital and metropolis. The ninet(HMith centurv looks back two thou- PIIAR^rACAI. JURISPRUDENCE. 41 sand years for its masters in art and literature. In the matter of inventive ,s>-enius, and aloni;- the lines of scientific research, no man need doul)t that we have passed the hii;h-tide mark of the classic aoe; bnt, in delicate accuracy of execution and expression we bow to the attainments of that older civilization, and do not hesitate to hoi-row from it our ultimate thought in the simple and sublime. As it is in art and literature, so it is in the law. It is beyond doubt that we have passed the li(unans in the streuiith and flexibility of our po- litical institutions , the attainment of social equality on stalde principles, and in all things that tend to insure to Ihc individual the widest possible range of lawful liberty. Also, we enjoy the advantage of feeling tliat our systeui of law guarantees our liberties, by insuring to us the power, Avithin (mrselves, to maintain those lib- erties. And yet, with aJl this, we owe au incal- culable debt to that other and ancient republic, the commonwealth of Home, and to the empire into which that republic merged, for the ac- curacy, finish, and tried sim])licity of the legal ])rinciples that have contributed so mucli to make all these things possible to us. During the dark ages that followed tlie wi'<'ck of Koman civilization, classic art, literature and law, alike lay for centuries unnoticed and un- tliought of, while warring tribes and nations stcu'med over them from sea to sea. Witli the 42 ROMAN CIVIL LAW. breakiiii*- up of that aiu-ieiit civilization, society seemed retiiniini»- to primeval eliaos. The fiery descendants of Goth, Hnn, Vandal and Lom- bard raged over Europe and fought like liungry tigers for lands that had once been the abiding- places of culture and refinement. Civilization was drowned in a deluge of barbarism. Floating and tossed about on the waves of that deluge, the records of the highest achievements that the thought and experience of the world had yet at- tained were only as driftwood in the eyes that remained to view' theuL The appeals of beauty, elegance, and learning met alike with no response from the iron men of that terrific social cata- clysm. During those centuries of intellectual dark- ness, and until the revival of learning in modern times, there was no nation or people at any place on the entire earth capal)le of using and appre- ciating either the art, the literature, or the laws of Rome. It is true that the Eastern Empire, the Greek bi'anch of the Roman world with its capital at Constantinople, may be regarded as an excep- tion, but of doubtful character, to the statement just made, since it maintained for some centuries the semblance of Roman civilization after the fall of Rome. However, its life was a mere feeble old age, and there existed in its people neither the ambition nor the power to impress Roman ideas or custoiiis \\\n)n the rude tribes around thcuL PHARMACAL J rklSPRUDENCE. 43 Tliouiili, in appearance, the learning;- of classi- cal Rome was destroyed and lost to the world, it was not so in fact. It was like a forest fire when struck by a cyclone. At first the flames seem to have been extinonislied, but, in fact, they have only been scattered. The prolific embers, whirled away by the wind, have kindled on a hundred hillsides, and after an interval of smoke and confusion there are a hundred fires instead of only one. It is no lonoer a local blaze, but the whole vast wilderness is in flames. Classic Latin has enriched the speech of all the civilized world, as classic learning has en- riched its thought. Tlie church of Rome, active and aggressive throughout all the Middle Ages, was undoubtedly the chief agent in disseminat- ing, among the fragmentary nations of that time, the heritage left by the deceased empire. It is through this subtile and powerful agency that we may trace the advent of the Roman civil law to the shores of England. The representatives of that great spiritual organization were every- where, and constituted, for centuries, the only learned body of men that the world possessed. In England the church had its tribunals, called ecclesiastical courts, for the trial of many causes over which it claimed and was allowe- intact the ma- jestic principles developed by the learning- and wisdom of a long line of illnstrious judges. The Supreme Court of Judicature was so con- stituted that it embraced a High Court of Jus- tice and a Court of Appeals; and the act spe- cifically provided for the recognition of equitable rights and titles by these two branches of the Court, and for the substantial application of equitable remedies. It was a change of form and not a change of principles. The conclusion had been reached that one court might be constituted so as to administer justice in accordance with either common law or equity principles. Throughout the Ignited States the federal courts deal with both law and equity, as provided in the Constitution, but a distinct form of action is maintained for each, and equitable relief will not be granted in a common law action. In the State Courts the practice is not uniform on this point. New Jersey, Kentucky, Delaware, Ten- nessee, ^Mississippi and Alabama, respectively, maintain distinct courts of chancery; while all distinction between actions at law' and suits in equity has been abolished in New York, Ohio, Indiana, California, Wisconsin, ^Minnesota, Mis- souri, South Carolina, Kansas, and Nebraska. In the other States the two forms of action are still maintained, but, as in the federal system, both are prosecuted in the same court. PIIARMACAL JURISPRUDENCE. S- It appears \'v(m\ tli(» course of history and from present indications, thai the jurisprudence of tlie fntnre Avill acconi]>lish tlic complete as- simihition of the doctrines of the two great sys- tems of the past, and that equity powers will be universally exercised by courts of law. INTERNATIONA!. LAW. Sir William Blackstone defined the Law of Nations or International Law as "The law which regnlates the condnct and mntual intercourse of independent states with each other by reason and natural justice." This definition seems to imi)ly a kind of equity system, with an unlimited range for the exercise of individual opinion, in each particular case, as to what may be within the limits of "reason and natural justice." But if International Law were thus, in fact, without more definite limita- tions, two or more'independent nations, swayed by opposing- interests, would rarely reach an agreement on even the most ordinary lines of intercourse. The Law of Nations, as now recognized by the civilized independent states of the world, em- braces a bodA^ of distinct rules and precedents; and abstract reason and natural justice are not usually appealed to in a controversy between nations, except in the absence of an established rule or principle. 58 INTERNATIONAL LAW. Mr. Lawrence, in his text book on Interna- tional LaAv, defines it as "the rules which deter- mine the conduct of the general body of civilized states in their dealings with one another." This definition seems to be justified by the practice of modern nations in the settlement of their con- troversies. Law of nations must not be confused with comity of nations. One nation has the right to demand of another a due observance of an estab- lished rule of International Law, but the exer- cise of comity is a matter of courtesy and mutual convenience, and is wholly wdthin the discretion of each sovereign state. International Law has for its sources the writings of great publicists, decisions of prize courts, international conferences, arbitral tri- bunals, treaties and other state papers, and in- struments given by states for the guidance of their own officers and tribunals. It must not be understood that a mere theoret- ical rule advanced by a writer, however great his learning and reputation, is a law of nations. Such a rule may present a sound principle, but it is not a law' until it has been accepted as such or acted upon by the nations themselves. For instance, many of the humane practices now uniformly observed by nations at w-ar with each other, were first advocated for international use by the great publicist, Grotius. But when these rules first appeared in his writings they had PHARMACAL JURISPRUDENCE. 59 merely the weight of wise suggestions and sound principles ; now, liaving been accepted by at least most and probably all civilized nations, they possess the authoritative character of law. The question is often raised as to whether these international rules which determine the conduct of civilized nations in their dealings with one another are really laws. Those who raise the question claim that such rules do not possess the three elements necessary to constitute a law ; that is, that they do not embody the command from a superior being, the obligation to obey resting upon those who receive the command, and the sanction or penalty by which obedience is enforced. It is only by a technical criticism of interna- tional rules that the objector to their character as laws can find any support for his objection. When more broadly viewed and fairly analyzed these rules disclose all'of the elements necessary to constitute a law ; and the same principles are found to exist in them as exist in those rules of action that are prescribed by the supreme power of a single state. Whenever a rule of action has been accepted by the nations as a proper rule by which to de- termine their conduct in their dealings with one another, it is, in a sense, mandatory in its ap- plication to each of them, and there rests upon each of them the obligation to obey it. As for the sanction or penalty, the nation that persists 60 INTERNATIONAL LAW. Id the violation of the rules of International Law is certain to bring upon itself the disap- proval of all other nations and will probably provoke the open hostility of one or more. In fact, the disadvantages and losses reaped by such a course constitute a penalty of greater or less significance, the contemplation of wdiicli is about as effective in promoting among nations an observance of International LaAv as the fear of punishment is in restraining the individual citizen of a single state from the commission of crime. Closely related to the Law of Nations stands what is generally termed Private International Law^ or Conflict of Laws. These terms are ap- plied to that system of rules or principles whicli serve to direct the courts of any independent state in the adjudication of those cases which contain some foreign element, either as to the subject matter thereof or the parties thereto, and Avherein the jurisdiction or the laws of some other independent state conflict with its own. In every case at law or in equity which em- braces any foreign element, the court must first decide whether it has jurisdiction of the sub- ject matter and the parties; that is, whether it has the right to try the case at all. If, by ap- plying the rules of Private International Law in force within its own territory, it finds that it has the right to hear and adjudicate the cause, then it must next decide, by the same S3^stem of PHARMACAI. JURISPRUOENCE. 61 rules, l»y wliat body of laws the riolits of the par- ties shall be determined. If, for instance, the controversy involves the construction of the terms of a contract, and it appears that the par- ties to the contract intended that its terms should be governed by the law of Italy, then the trial court would, o-enerally, under the American rule, be bound to apply the laws of Italy to the inter- pretation of the instrument. Havino; settled the meaning- of the contract by the laws of Italy, the court would then apply the laws in force within its own jurisdiction to determine whatever re- lated to its performance and operation. The rules of Private International Law adopt- ed, respectively, by the different civilized na- tions, while not exactly the same in each state, are yet so nearly the same as to bring the policy of the several nations very near to uniformity in this respect. The explanation of this is in the fact that the several communities are moved, practically, by the same reasons and necessities in this matter, and naturally adopt about the same rules as the most effectual and convenient measures to meet the demand. This branch of jurisprudence differs in char- acter from public International Law, in being framed, published, and enforced by each state as a part of its own p'eculiar system of laws; and is international only in the sense of provioth branches. Jurisprudence, in its more limited and scicMi- tirtc sense, is the science of interpretiuii and aj)- plying the laws in the adjudication of eases. The word is used also more broadly and loosely to ex- press the entire system of laws in force in any stated country, as distinguished from those of other countries, as, for instance, the Roman sys- tem of jurisprudence; and, again, to distinguish the application of the principles of the law to the conditions of any particular vocation, to- gether with the body of specific or positive rules peculiar to such vocation, as medical jurispru- dence, Pharuuical Jurisprudence, etc. It will be well at this point in our work to tix the attention upon the fact that, aside from the few special statutory rules which may be enacted by the legislative power to meet the peculiar re- quirements of any business or profession, the great body of rules controlling the same must be drawn from the general principles of the law. The work of discovering the right principle and wisely applying it to the case at issue is the duty of the judge, and is a practical application of the 72 DEFINITIONS AND SCOPE. science of jiirispriulence. For instance, if a physician undertakes the treatment of a sick man, there is an implied contract on the part of the physician that he will nse in the treatment of his patient, at least ordinary skill and care. If injury to the patient results from the treat- ment and a suit for damages is brought against the physician, in which such acts are charged as amount to a violation of the implied contract, the judge, if he finds no precedent, similar case to supply a rule to guide him in his decision, may be obliged to have recourse to the general ])ody of contract law to find a principle that may be ap- plied to the decision of the issue before him. Yet, in making the application of any sucli principle, due regard must be had for all the unusual con- ditions that may appear in the case as the result of the j)eculiar character of medical science and practice. In order that the judge may act ad- visedly in so delicate a matter, and wisely ap])ly the law, it may be necessary for him to supple- ment his own knowledge with the testimony of expert medical witnesses. The foregoing brief explanation of the science of jurisprudence may assist the reader to under- stand the real nature of Pharmacal Jurispru- dence, and to discover whatever there may be of fitness in the definition which has been framed for the subject of this book. Pharmacal Jurisprudence treats of the appli- cation of the principles of the law to conditions rilAKMAC'Al ;pKri)i:\cE. 73 (Icvi'loped l>y I lie jn-aclicc of ])liann.Mcy, ;nul ciii- hraces sucli rules of positive law ns have been iiinclo to meet the reiniii-eineiils of those coiuli- ti(»iis. The iletiiiitioii here ^iven assiiiues, fiiiidanieiU- ally, that this branch of the Unv is not to be re- uar.led as a system of ww prineiples bnt rather, tlie a])])li(ation of well-known and established ]»rin(ii)les to the (•ir< iinistanees attendinc: a oom- naratively new tield of litigation. ()nr laws, l)erforee of necessity, *>Tonp themselves along- the lines of greatest activity, and Avhere nothinj>- is done no reunlatinti- or controlling;- rnles are needed ; bnt to whatever line of operations human interest and energy are directed, there the law must promptly extend its controlling arms for the regulating and enforcing of human rights. Thus arises a new demand for the judicial func- tion in ap])lying old legal princii)les to new con- ditions, and from this, as a natural seciuence, tliere results the gradiml development of a new branch of law or jurisprudence. Of course it is apparent that whenever a profession or business arises to the dignity of furnishing a name for a new branch of the world's jurisprudence, it has thus given the strongest evidence possible of its own growth and significance. Although the first part of our detinitii'udence includes the ])rincipal features of the subject, yet its entire scoi)e can- not be indicated without the addition of the last 74 DEFINITIONS AND SCOPE. part. Some positive laws have been enacted both in this country and Great Britain, having for their object the regulation of the practice of pharmacy, and a definition of this branch of ju- risprudence must be so framed as to include tliese positive rules or legislative enactments. From this brief study of the definition of our subject, some inferences may be drawn concern- ing the legitimate range or limits of the ground to be covered by this treatise. It will be appar- ent that if the work were restricted to the dis- cussion of such statutory rules as have been en- acted on the subject, together with the decisions applying and interpreting these rules, it would require but little time and labor to complete the undertaking. But when it is remembered that Pharmacal Jurisprudence consists chiefly in the application of principles, selected from different branches of the law in general, to specific eases arising out of the practice of pharmacy, and that the subject has its commercial as well as its pro- fessional aspect, it will be seen that our field of operation promises to develop outlines of consid- erable magnitude. After a rapid glance at the origin and history of this part of the law, both the past and the present legal status of the phar- macist, the legal limits of the profession of phar- macy and its relations to its kindred profession of medicine, and the legal relations of the phar- macist to statutory boards of pharmacy, it is proposed to next examine some of the principles PHAKMAtAL J IRISPR T DKXCK. ,b of the law of coiitracts within the limits of their application to oni* snbject. The scope of onr work will require an investiuation of the law ooverning- phaniiacal malpractice and the gen- eral liability of the i)harmacist in that rej^ai'd; and in this connection the liability of the manu- facturing pharmacist will be the subject of con- sideration. The law of agency must claim the attention of the reader, with a yiew to disclos- ing the legal relations existing betAyeen the man- ufacturer and the retail dealer and pharmacist on one side and their seyeral employes on the other side, with the resulting liability of the former for acts done by the latter. It will be necessai^j' to examine a number of other principles and statutes, selected from the law in general on ac- count of their indirect or incidental bearing upon matters that fall within the range of our subject. In the discussion of the yarious legal princi- ples suggested aboye, it is proposed to introduce numerous decisions for the further elucidation of these principles and to show their practical ap- plication to pharmacal conditions. In some of the leading cases, the opinions handed down by the courts in rendering their decisions will be given in full, in order that the lines of reasoning followed by the judges may giye more viyid con- ceptions of the several principles and their a])- plicatiou to the facts. In other cases the de- cisions will be presented more briefly, embodying only the conclusions reached by the courts. A 76 DEFINITIONS AND SCOPE. brief summing up or dii>est of the rules deduced Avill conclude each topic discussed. The scope of the treatise requires the consid- eration of the statutory provisions regulating- the practice of pharmacy in tliis country, emhracing a study of the conditions which led to the action of the several legislatures in this regard; with a discussion of their constitutionality, their rela- tions to the general law, their territorial limits, and their interpretation by the courts in such cases as have arisen under them. It will be nec- essary- to consider, also, the main features of an ordinary action at law, and the relations which a phannacist may sustain to such an action either as a party or as an expert witness. A number of practical questions, incidentally touching the profession of pharmacy, demand treatment in connection with a work of this kind ; among which are the legal status of the physi- cian's prescription, as to the several interests of physician, patient and pharmacist ; insurance law relating to a stock of drugs, or to a mixed stock; and the origin, nature and use of trade marks, witli the penalty for the violation thereof. Any other legal rule or principle, having a prac- tical bearing upon either the professional or the commercial aspect of pharmacy practice, may be deemed properly within the limits of Pharmacal Jurisprudence. PIIARMACAL JURISPRUDENCE. CUIAPTEK II. Hlstouical View of the Sur-teut. Ill the Introductory Tliesis, tlie history and outlines of our present system of Iuav in oeneral has been briefly indicated, and it is noAv proposed to touch, with equal brevity, upon the beginnings and growth of Pharmacal Jurisprudence consid- ered as a special department or branch of the law. Our researches along the line at legal history lead us back to a ]KH'iod of time but slightly re- moved from that in which, in the opinion of "good society," a knowledge of ''simples" was quite sufficient to damn its possessor as a wizard or witch ; and when an unwary person, chancing to fall into the neighborhood of something which even distantly resembled a chemical laboratory, crossed himself vigorously as a kind of disinfec- tion from an unwholesome, brimstone atmos- phere. Strictly speaking, pharmacy, as a distinct and scientific profession, had its birth in the early part of the nineteenth century; but its princi- ples have been known, studied, and used in con- nection with medicine for many centuries. We find that the principles of pharmacy were prac- ticed successively by grocers, chemists and drug- gists, and apothecaries long before the term "pharmacy" was generally applied to that 78 HISTORICAL VIEW. branch of science; but for convenience through- out this chapter, that modern and scientific term will be used in speaking generally of the legal history of the principles noAv embraced within its meaning. Except that learning, itself, possesses an in- nate and immortal dignity, pharmacy does not occupy a very dignified position in history. It is old in its researches and learning, but compar- atively new so far as concerns its recognition by the world as one of the most useful of all sciences and professions. Medical jurisprudence and forensic medicine, as branches of the law, pos- sess a history centuries old; and even dental ju- risprudence, young as is the profession of den- tistry', found an able exponent in the late Mr. IJehfuss, whose excellent book is now an author- ity on that branch of the law; but Pharmacal Jurisprudence, except as touched upon by writ- ers on medical law, has not heretofore, to any extent, engaged the attention of law writers, nor has it received that degree of consideration from either lawyers or pharmacists to which its im- portance entitles it. The Department of Phar- macy of the University of California was prob- ably the first college of pharmacy in America to add this important feature to its course of study, and the author is not aware that there exists, at the time of this writing, any text book or com- pilation of decisions on this branch of the law. This poverty of judicial record in the past is PHARMACAL JURISPRUDENCE. 79 owing", it i,s thongivt, t(i tlio rather Iniiuble atti- tude of the profession of pliarmaey (Inring the centuries precedinji' the nineteenth; and the fact that the practice of this profession, wlierein exist so many opportunities for serious and even fatal mistakes, has not developed a greater amount of litigation during the present century, may be attributed, largely, to the studious and painstak- ing character of the main body of its members. Undoubtedly most civilized countries have, at various times, enacted laws of the nature of police regulations, relating to the sale or dispens- ing of poisons and other drugs. Shakespeare affords us a vivid picture, suggestive of the gen- eral status of pharmacy and of the law environ- ing it in Europe, prior to and during that great writer's time. Like most of his writings, this graphic account seems to speak the sharj) trutli of an age in which the dominant classes of society were yet dull to airieaming, and saw in "Will Shakespeare" himself, but a common play-actor. In the passage referred to, Romeo, hearing, as lie believes, of the passing of the soul of Juliet, de- sires a "dram of poison" as a means by which to cross the dark barrier that separates him from his lost love : "I do remember an apothecary, — And hereabout he dwells, — wliicli late I noted In tattered weeds, with overwhelming brows, Culling of simples; meager were his looks, so HISTORICAL VIEW. Sharp misery hath worn hiin to the bones : And in his needy shop a tortoise hung, An alligator stnifed, and other skins Of ill shaped fishes; and above his shelves A beggarly account of empty boxes, Green earthen pots, bladders and musty seeds. Remnants of packthread and old cakes of roses, AVere thinly scattered to make up a show. Noting this penury, to myself I said 'And if a man did need a poison now. Whose sale is present death in Alantua, Here lives a caitiff wretch would sell it him,' " In response to Romeo's demand for poison, ac- companied by a liberal offer of gold, mindful of the danger threatened by the law, the apothecary replies : "Such mortal drugs I have; but Mantua's law Is death to any he that utters them." The apothecary yields at last to the demands of the insistent, would-be suicide and says : "My poverty but not my will consents." Then Romeo : "I pay thy poverty, and not thy will." The lean and pitiful aspect of the person de- scribed, doubtless as a type of his profession, sug- gests the very slight esteem in which that pro- fession was held; while his fearful reference to the terrors of the law sheds light upon the legal policy of that age and country in regard to the PHARMACAL JURISPRUDENCE. Si sale of poisoiKtiis rac- titioner of medicine within certain limits. It is probable that during the earlier part of this time, 82 HISTORICAL MEW. the apothecary was the exclusive representative of the drug business, but it is certain that later there grew up a class of druggists, or chemists and druggists, who were entirely distinct, in their character and legal responsibilities, from the apothecaries, and the distinction still exists since the former class has developed into the pharmacist of more modern times. However, since the apothecary, in his double character of doctor and pharmacist, continued to compound medicines for the physicians, even while the chemist and druggist was operating in the same line, and since the law took notice of him with regard to his duties as a dispenser of dnigs, w(! shi'll glance at some of the English statutes en- acted to that end. It seeiDS that the apothecary took his name from ancient sources, suggesting a history too remote for our present uses, it being derived from the (Jreek apothcl-r, compounded of apo, away, and tif]ii)i)i, to put, through the Latin apothc- (■(iriiis, a storekeeper, from apotlicca, a store. As the name implies, we find the apothecary in Eng- land, in earlier times, a storekeeper, classed with the grocers of the country and possessing the same legal status; while in more recent years he is found presiding over what is ]iopularly called a "doctor's shop." Rut even in the earlier times referred to, the apothecaries mus( liave been an active and quasi scientitic Ixxly of men, known to possess a sphere of usefuliu^ss somewhat broader PHARMACAL JURISPRUDENCE. S3 Thai siicli was the case is strongly implied l».v llic Act of ]*ar- liament, 34 and ^o, Ileiirv VIII cIi. S, passed in 1543. rarliament desiniuMl, l»y llie a<'l referred to above, to remedy eertain evils which had grown np in connection with the practice of London sur- geons, concerning whose ignorance and disrepu- table conduct the preamble speaks in terms of great severity. The body of the statute is ex- pressed in the following quaint language: "Be it ordained, established and enacted by the authority of the present Parliament. That at all times from henceforth it shall be lawful to every person being the King's subject, having knowledge and experience of the nature of herbs, roots and waters, or of the operation of the same, by speculation or practice, within any part of the realm of England, or within any other part of the King's dominions, to practice, use, and minister in and to any outward sore, uncome, wound, apostomations, outward swelling or disease, any herb or herbs, ointments, baths, pultess and em- plaisters, according to their cunning, experience and knowdedge in any of the diseases, sores and maladies beforesaid, and all other like to the same, or drinks for the stone, strangury or agues, without suit, vexation, trouble, penalty, or loss of their goods, the aforesaid statute in the fore- said third year of the King's most gracious reign, or any other act, ordinance, or statute to the 84 HISTORICAL VIEW. contrary heretofore made in anv wise notwith- standing." The passage of the above law was highly ad- vantageous to those who possessed a knowledge of drugs, and skill in their application; and on account of the encouragement which it gave to this department of science, it may be regarded as having been a very significant force in the de- velopment of modern excellence in pharmacy. Yet, however, it was nearly three-quarters of a century after this important step, before the apothecaries of England received full recogni- tion by the government and acquired their pres- ent legal status as a distinct corporation. In regard to the separation of the apothecaries from the grocers, Ordronaux says : "Drugs or medicines, as a marketable commodity, seem originally to have spiimg from the field of pro- visions among which as it is well known are to be found many substances having a therapeutic as well as an alimentary character. Hence, grocers or poticaries, as they were synonomously called, formed one of the ancient companies of the City of London, until the year 1615, (13 Jac. 1.) when, from the glaring mischiefs already seen to arise through the sale of improper medicines, the propriety of separating the apothecaries from the grocers company l)ecame a matter of public necessity.-'^ 1 Jurisprudence of Medicine. Ordronaux, pages 254, 255. PHARMACAL JIK ISPRUDENCE. 85 The piraiiiblo of a later Euj^iisli statute, re- ferring- to this act of 1615, says : "His Majesty King James the First, by Letters Patent, nnder tlie (xreat Seal of Great Britain, bearing Date the Sixth - upon their rights and duties; these ordi- nances were further added to under Louis XII, in 1514 ; under Francis I, in 151(5 and 1520 ; under Charles IX, in 1571 ; under Henr^^ III, in 1583, and Henry IV, in 1598. Louis XIII confirmed their ancient charters in 1611 and 1624, and in 1638 appeared the final statutes under which the corporation has ever since governed itself." Speaking of the legal status of apothecaries as compared with that of the ordinary druggist in France, he says : "The code Napoleon makes a trenchant distinction between apothecaries and simple druggists, in the rights severally accorded them to deal in drugs. The former, who are as- sumed to be pharmaceutically educated, are alone allowed to sell compounded medicines; the lat- ter, who are mentioned in it along with grocers, are only permitted to sell drugs of a simple char- acter, in bulk and at wholesale."^ The regular apothecary, on the English plan, does not seem to satisfy the requirements of either pharmacy or medical practice in the United States, and the "doctor's sho])" is au in- stitution which is not in harmony \vit]i the pre- vailing American idea as to the highest i)ossibil- ities of either of the learned professions, between which in EIngland it forms a kind of rusty link. The and)ition of the earlier English apothecary 92 HISTORICAL VIEW. to practice medicine lias been worked out to a point of realization by his successors, and the Avorld has witnessed in him, the evolution of a doctor from the primitive vender of drugs and medicines — a doctor who yet maintains his apoth- cca or shop, while doing a large proportion of the medical practice of his country. He con- tinues to be a combination of the skilled phar- macist and the licensed medical practitioner. The tendency of medical science in America is toward maintaining and fostering a distinct, scientific and well-educated profession of phar- macy on the one hand, and an exclusive, re- stricted, and highly trained body of physicians on the other; while the legislatures of the several states have shown themselves to be in sympathy with a doctrine that is at once ethically sound, and eminently practical in operating to protect the lives and health of the people. PHARMACAL JURISPRUDENCE. 93 niAPTEK III. Legal Limits of Phaioiacy. Pharmacy is defined as "The art or practice of prepariuo- and preserving; drn<2;s and of com- pounding- and dispensing- medicines according to the prescriptions of physicians ;" and a pharma- cist is "One skilled in the art and science of com- pounding and preparing medicines." The word ])harmacist is derived from tlie (JreiMv word phar- makeia, from phaniial-cKciu , meaning to admin- ister or use drugs. From the definitions given in the ])receding paragraph, it may be said that the "practice of pharmacy" is the practical application of the principles of the science of pharmacy to the actual preparing, preserving, compounding, or dispensing of medicines. The courts of this country have not yet defined the exact scope of the practice of pharmacy, by furnishing us a judicial statement of the limits within which the operations of the pharmacist must be confined ; but the New York statute, regulating the "prac- tice of pharmacy," indicates that the latter term signifies the compounding of prescriptions, or of any T^. S. phannacopoeial preparation or of any drug or poison, to be used as a medicine, and the retailing of any drug or poison. This may serve as a legal definition and will probably be found in liarmony with the spirit of each of the several 94 LEGAL LIMITS. State statutes ou the subjeet throiiohout the Union. In our endeavor to arrive at a useful, working idea of this branch of our subject, it will be well, at the beginning, to remember that the qualified pharmacist stands in the relation of beneficiary to the statutory provisions regulating the prac- tice of his profession. The limitations embraced in those provisions are directed against the inter- ference or encroachments of those who are not legally qualified to practice pharmacy; thus giv- ing to the lawful practitioner the exclusive priv- ileges peculiar to that profession, wliile leaving him in the unrestricted enjoyment of all rights and immunities possessed by the ordinary lay member of society. It might appear from this view of the case, that in the general adjustment of professional rights, the pharmacist had been left without any legal restrictions upon the field of his operations ; and such might have been the case had his profession been the only one which the policy of the law saw fit to protect. As it is, hoAvever, the law has thrown around certain other professions, regulating and protecting lim- itations similar to those which guard from en- croachment the legitimate field of the pharma- cist; and it is to tliese that the pharmacist must look for the legal danger line beyond which he must not pass. The profession of pharmacy, in its very nature is kindred and contiguous to the medical profession. They possess a common but rHAR>rACAr, irRisrRrnENXR. 95 i-learl.v di'tiued frontier lino, which has long been the scene of mutual trespasses, and has served to repress or limit the operations of the pharmacist in that direction. What the pharmacist may legally do, in excess of the rights of other citizens, is implied with suf- ficient clearness in the definitions of ''phar- macy," ''pharmacist,'' and "practice of phar- macy," alrexidy given in this chapter. What he must refrain from doing is, in general, em- braced within the negative obligations of every good citizen ; but it is necessary to treat this subject in a more specific sense, by directing our investigations to those points Avhich are of peculiar danger to the phar- macist, in consequence of their presenting the temptation offered by frequently recurring opportunity. As already indicated, the greatest danger of this kind lies along the line between pharmacy and medicine, and the limits there im- posed may be best understood by studying the prohibitory features and application of the stat- utes regulating the practice of medicine. Tender the statutes of the several States pro- hibiting the practice of medicine by any person not authorized by law to do so, we find several interesting decisions in which the restrictis furnished a case, decided in 1891, of some interest as showing the difference between the legal status of him who prescrihes a patent medicine, and of him who simply sells it. The statute under which the case was tried provides "That any person who shall practice or attempt to practice medicine or surgery in this State without first having regis- tered and obtained the certificate as aforesaid, shall be guilty of a misdemeanor."^ The court said "If the defendant merely held himself out to the public as a physician or surgeon, he was guilty of the offense created by the statute." "An unlicensed person, claiming to be a ])hysician and holding himself out to the world as such, 1 Fox V. Dixon. 12 N. Y. .Supp. 267, 58 Hun. 60."). 2 N. C. Acts of 81). C. 181,.S. 5. 104 LEGAL LIMITS. cannot, after examining a person who has asked his services, diagnosing the disease, fixing an amount or price for wliich he will cure the pa- tient and giving him a prescription, evade the law by proving that the remedy administered was a proprietary remedy, prepared and used by him." Touching the rights of a seller of a patent medicine, the court said : "A vender of patent medicines who does not pretend to diagnose dis- ease and determine which of the remedies is proper in a particular case, is not a violator of this statute."^ In a Kansas case, decided in 1890, the court de- fines "practice of medicine,'' and also squarely meets the question as to whether or not a person, not authorized to practice medicine, may re- cover the price of medicines furnished by him as a physician. The Kansas statute enacted to pre- vent empiricism, provides: "That it shall be unlawful for any jierson within the limits of the State of Kansas, who has not attended two full courses of instruction and graduated in some respectable school of medicine, either of the United States or some foreign country, or who cannot produce a certificate of (pmlification from a state or county medical society, and is not a person of good moral character, to practice med- icine in any of its departments for rewaroncy" as "a case in which the ordinary medical prac- titioners of the schools provided for by the State, who are provided with the proper diplomas, and submitted themselves to tlie proper examination, are not readily obtainable. This is an emergency as where the exigency is of so pressing a char- acter that some kind of action must be taken be- fore such parties can be found or procured." In this case the court held that the fact that the patient has been given up by regular physicians does not constitute an ''emergency'' in the mean- ing of the statute. The decisions which have been under consider- ation in this chapter, marking the frontier bar- rier of the medical profession, will, by making a practical application to the pharmacist of the points decided, serve, in a reasonable degree, to determine the limits of the practice of pharmacy on the side Avliich is contiguous to the practice of medicine. The statutes regiilating the practice of medicine, of the kind under which these cases arose, are now so generally maintained in the American states and Great Britain, as to make the principles decided ()f almost universal a])])li- cation throughout the two countries. However, since these statutes are subject to freciuent amendment, most commonly on minor points but sometimes going to the very lieart (»f the subject, it is always well foi- llie plinniiacist to note all 108 LEGAL LIMITS. legislative inoveiiieiits in his state on lines so close to the interests of his own vocation. We will now present a brief summary of the more significant points decided in these cases. It seems, from the weight of authority of gen- eral application in states where the practice of medicine is regulated by statute, that a person would be acting in violation of the law if he simply held himself out to the public as a phy- sician, without actually having either diagnosed or prescribed in any case whatever. The rule just stated presents perhaps, the most extreme position so far taken by the courts and it is the one least likely to be encountered by the pharmacist. He is more concerned with the rule that one not authorized, who diagnoses a case and gives a remed}'^ for it, is guilty under the pre- vailing statutes. Now, to diagnose is ''to dis- tinguish a disease by its characteristic phenom- ena," and to do this, whether correctly or not, is sometimes a very simple process, and may be done by a person when standing behind the coun- ter of a drug store, without fully realizing the legal significance of his own net. A person en- ters the store, possibly of one with whom he is acquainted, and complains of not feeling very well. There is nothing more natural in such a case than that the pro])rietor or clerk who meets him shimld ask a question or two relative to his symi)toms, and thereupon suggest some simple PHARMACAL JURISPRUDENCE. 109 means of relief or reiiuHly, which he immediately proceeds to prepare and sell to his pdticut. In the case here assumed, the pharmacist has both diaunosed and prescribe- the practice of certain oc- cupatioiis and professions, are established and maintained in various forms in most civilized countries. Though appearing- only in the higher stages of civilization and regarded as the out- growth of an artificial state of society, they are, nevertheless, founded upon the natural and prim- itive right of personal security. Their presence is a manifestation of the efficient power of united mankind, exerted for the security of each indi- vidual, by sacriticiug the immediate and selfish interests of a few to the permanent and substan- tial interests of all. The legislative idea of public good is truer than that of the individual to the extent that private interests are eliminated therefrom. The average citizen would promote the general welfare by cheerfully restricting the private enterprises of his neighbor, wherever they might seem to be detrimental to the public good ; but would be slow to impose a check upon his own prosperity in pursuance of the same beneficent principle. In a legislative body, a majority may generally be 1 Munn V. Illinois. '.)-l L'. S. 145, 24 L. Ed. 77, S) U. S Notes 21 122 THE COMMON LAW RIGHT. found wlio are Avilliii<>' to work for wliat seems to them to be the highest g'ood of the people ; for it is not an easy matter to coerce or induce so con- siderable a number of men to act in unison for the furtherance of the merely selfish ends of any one person or company of persons. It is doubtless true, however, that the origin of very few statutes can be traced to purely dis- interested sources. The subjects which engage the attention of legislatures are agitated primar- ily, as a rule, either by those whose sole purpose is to use this department of government to ad- vance their private interests or by those who are moved to active exertion in a nuitter, by the ex- pectation of incidentally deriving some material personal advantage from the passage of the act desired. From the many subjects thus proposed for legislation, it remains for the legislators to determine which of them, if any, involve the real interests of the people in such a way as to require the making of additional law s. The passage of laws restricting and regulating the practice of a particular profession, like phar- macy, medicine, or dentistry, is generally urged by the members of the profession, themselves, with the laudable purpose of raising its standard of proficiency, and j^lacing it upon a higher and more exclusive plane of operation; their chief aim being to promote the growth and dignity of their profession, and incidentally to share in the PHARMACAL JURISPRUDENXE. 123 general prosperity resulting therefrom. But wlieu the subject has oiu-e beeu brought to the attention of the legislators, it is viewed and dis- cussed from a stan(l])oint widely removed from that occupied by the nuMubers of the profession. AVith the latter, the advancement of their profession is the central and moving thought, and the good of the public follows as a resulting benetit; while with the former, the public good must be the controlling consideration, to which the benetit conferred upon the particular pro- fession is incidental. Tried by the rule just stated, laws restricting and regulating the practice of pharmacy have generally met with favor, both from legislators and from the public at large, for the reason that such laws are founded upon principles of sound policy and are directed to the substantial good of the people. As before intimated, laws of this nature are based upon the principle of personal security or self preservation ; and wherever a vocation, or even a single act, is of such a nature as to be attended with conditions of peculiar or unusual risk or danger to the health, reputation or life of one liable to be affected by it, a person engaged in the vocation or doing the act is held to a responsibility, strict in proportion to the risk or danger. Such has ever been the policy of the unwritten or common law, and at various times statutes have befni enacted in aid of that ]>olicy; 124 THE COMMON LAW RIGHT. but it remained for modern jurisprudence to adopt measure>s which operate in the interests o/ scientific proficiency A^liile at the same time tend- ing, by preventive means, to reduce tlie danger. The wisdom of the method is, we think, beyond question in an enlightened age, and to maintain law^s of this nature is a public duty of the highest order; while the omission to provide for the pro- tection of the community against dangers so ap- parent, in a dull reliance upon common law rem- edies for irremediable injuries, invites a charge of criminal negligence or imbecility. No matter wdth what degree of strictness the common law rules of liability may be applied to him who deals in substances of a dangerous na- ture, these rules should be relied upon only after every means has been used to prevent any occa- sion for invoking them. There are some things for Avhich damages are totally inadequate as a remedy, and there are cases in which even that insufficient remedy cannot be obtained owning to the poverty of the offender. The true policy of the law is to reduce to a minimum the opportuni- ties for the dangerous and deadly mistakes to which a profession like pharmacy is peculiarly exposed, and wdiich menace the security of those who are obliged to trust their health and even their lives to the knowdedge and skill of its mem- bers. PHARMACAL JURISPRUDENCE. 125 Of coui'se, a law that specitically restricts the practice of a particuhir profession to those avIio possess a certain standard of educational quali- fications and general fitness, will challenge and encounter the violent opposition of those who are incapable of meeting its requirements; but this opposition needs not to be met by argument, since it bears in itself the seeds of its own de- struction. When an unood order, morals and health of the community." The del- icate balance between personal security and per- sonal liberty must be wisely adjusted and firmly maintained. 128 QUALIFICATIONS AND REGULATIONS. CHAPTER Y. qualip^ications of pharmacist and statutory Regulations. When we speak of the qualifications of the pharmacist in this connection, we mean those which the law requires him to possess. A man who "holds himself out to the community" as being fitted to do certain things that require scientific knowledge and skill, with a fair degree of care and judgment, and offers his services to that end, assumes certain obligations that the law will hold him responsible for. Every mem- ber of the community who avails himself of the services of such a man, is entitled to expect from him that he Avill exercise on his behalf a reason- able or ordinary degree of such knowledge, skill, care and judgment. The general principle here stated has special significance when applied to a profession like pharmacy, which so closely concerns the lives and health of the people. Moreover, the average citizen would be (piite helpless in the matter of determining the kind or quality of a drug liought by him or used in a prescription compounded by him. He is simply at the mercy of the pharma- cist; and the law gives him the right to rely ab- soluteh' upon the skill and judgment of the man who sells him the drug or prepares the prescrip- tion. For this reason it is judicially established PHARMACAI. JURISPRUDENCE. 129 concerninji the pliarnuu-ist, that "It is his duty to know the properties of his (Inii^s, and lo be able to distiugnish them from eaeh other. It is his duty so to qualify himself 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 pre- sented to be made up, the proper medicines, and none other, be used in mixing and compounding it." Not only must he who chooses this profession qualify himself thoroughly for the discharge of its responsible duties, before entering upon its practice, but he must maintain himself abreast of the times in all that pertains to pharmaceuti- cal knowledge as applied in modern practice. In all legal issues — contests growing out of charges of negligence, unskilfulness, or other malprac- tice — that may arise in the pharmacist's career, he will be judged by- the authorities and stan- dards of his profession. The law does not require the pharmacist to possess a degree of knowledge and skill equal to that of the most advanced members of his voca- tion, but is inexorable in its demand that he shall have and use in his practice at least ordinary knowledge and skill. The principle here stated is of the general law and entirely independent of all statutory provis- ions. The fact that a man holds a license to 130 QUALIFICATIONS AND REGULATIONS. practice pharmacy under the statute, iu a state where the practice of pharmacy is reguhited by statute, does uot iu auy sense exempt him from the force and effect of this general, fundamental principle as to his qualifications. Neither act- ual ignorance nor negligence may shield itself behind the theoretical ])roticiency suggested by a license. In most of the states of the Union statutes haye beeu enacted to regulate the practice of phar- macy. Of course these la^ys are of force only \yithin the boundaries or jurisdiction of the par- ticular state that passes them, and pharmacists and la^yyers must acrato(l as an aniciuliiu'iit into Uw Constitiilion itself. This anu^ndiiuMit dcclaros that, "'IMic ])<)\vers not deleuatod to the T^nited States by the Constitution, nor prohibited by it to the States, are reserved to the States resjK'ctively, or to the people.^ Tt is apparent from tlie prineiples jnst stated that altlionjih tlie laws of the Ignited States are snprenie, and paranionnt to the state laws, yet it is only upon certain subjects, desii>nated by the Constitution, that the federal government has authority to make any laws at all ; while each state is to be considered as possessing the unlim- ited rights or powers of sovereignty, except as to those powers that have been either specially con- ferred upon the United States, or reserved by the State constitution to the people of the State themselves. It follows from these conditions that ever}' law passed by a State of the Union must be presumed to-l)e constitutional unh'ss the contrary clearly appears. "To justify a cimrt in pronouncing an act unconstitutional, in whole or in part, it must be able to vouch some excep- tion or prohibition clearly expressed or neces- sarily implied. To doubt is to favor constitu- tionality." "That meaning of words is to be taken wliich will support the statute."^ Also, "A separate portion of an act may be unconsti- 1 Const, of U. S. Tenth AnietKl. 2 Commonwealth v. Butler, <.i!» I'a. St. 540; State v. Hipp, 3S Ohio St. 219. 140 CONSTITUTIONALITY OF LAWS. tutional, and the rest be valid, provided tlie law as a whole cau be executed."'^ "The rule is to en- force statutes as far as the}' are constitutionally made, rejecting those provisions only which show an excess of authority, etc."- With regard to the different kinds of uncon- stitutional laws. Justice Woodward said, "A law that is unconstitutional is so because it is either an assumption of power not legislative in its na- ture, or because it is inconsistent with some pro- vision of the federal or state constitution."^ The legislative 'branch of the government, whether state or national, must keep within its own proper sphere of action and must not under any circumstances trench upon the duties and powers vested in the executive and judicial departments ; for this would be "an assumption of power not legislative." Article VI of the (Constitution of the United States proclaims that, "This Constitution, and the laws of the Ignited States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme hnv of the land ; and the judges in every State shall be bound thereby, anything in the Uonstitution and 1 United States v. Reese, 92 U. S. 221, 23 L. Ed. 563. 8 U. S. Notes 787; Presser v. Illinois, 116 U. S. 263, 6 Sup. Ct. Rep. 580, 29 L. Ed. 615, 11 U. S. Notes 27. 2 Adler v. Wliitbeck, 44 Ohio St. 575, 9 N. E. 672; Reid v. Morton, 119 111., 118, 129, 6 N. E. 414. 3 Commonwealth v. Maxwell, 27 Pa. St. 456, PHARMACAI. irRISPIU'DENCE. 141 laws of any State to tlie contrary iiotwithstaud- iui>." This is a bold and nner()ce(Mliugs adapted to tlie nature of tlie case." "There is nothing of jni arbitrary cliaracter in the provisions of the slalule in (|ii('sti«>n ; it ap- plies to all ])liysi(iai!s, exc(']>t those wlio may be called foi- a si)e('ial case from another State; it PHAR^^ACAL JURISPRUDEXCE. 147 imposes no ((mdil ion which cnnnol ho H^adily mot, and it is nuuh' cnrorct'.-ihh' in I he mode usual in ivindred mattns, thai is, l»_v iviinhir proceed- ings adapted to the ease. It antlM)i'izes an ex- amination of Die api)lieant h_v the Hoard of Health, as to his (inalitieatious Avlieu lie lias no evidence of them in the diploma of a reputable medical college in the school of medicine to which he belongs, or has not practiced in the State a designated period before March, 1887."^ These extracts from the opinion rendered in Dent vs. West Virginia possess the clearness, simplicity, and scientific directness that are wont to characterize the expressions of the great jur- ist who wrote them; and the principles therein outlined are admirably expressive of the consti- tutional status of the laws under discussion. In a Minnesota case arising under the statutes of that State regulating the practice of dentistry, the court declares that the power of legislatures to prescribe reasonable conditions, upon which professions ma}* be practiced, rests upon the right to protect the public from injurious consequences likely to result from allowing persons to practice those professions, who do not ])ossess (|ualitica- 1 Dent V. West Virginia 129 U. S. 114, 9 Sup. Ct. Rep. 281, 32 L. Ed. 623, 11 U. S. Notes fiS4; see also Eastman v. State, 109 Ind. 278, 08 Am. Rep. 400, 10 N. E. 97; Orr v. Meek, 111 Ind. 40, 11 N. E. 787; Broun v. People, 11 Colo. 109, 17 Par. 104; State v. Creditor, 44 Kan. 565, 21 Am. St. Rep. 306, 24 Pac. 346; Limitations on Public Power, Tiedman, Sec. 87; Hewitt V. Charier, 10 Pick. 353; Spaulding v. Alford, 1 Pick. 33; Wright V. Linckton, 19 Pick. 288; Cooly Const. Lim. 745. 14- simply to the scien- tific compoundiuii- and dispensini]^ of medicines, but must l)e understood to include the commci-- cial aspect of the business in the sale of the "drugs, medicines, and poisons," referred to in the body of the statute; and says, further, that the fact that the sale of the articles named is not referred to in the title does not invalidate the provision as set forth in the body of the act. The terms employed in the expression "practice of pharmacy" are sufficiently comprehensive to em- brace the entire usual field of operations included in the business of the modern druji\iiist.^ In the case of "People v. ^loorman," decideS0. S .Sup. Ct. Rep. 504, 31 L. Ed. 508, 11 r. S. Notes 483; Railway Co. v. Alabama, 128 U. S. 96, Sup. Ct. Rep. 28, 32 L. Ed. 352,'ll U. S. Notes 621. 152 CONSTITUTIONALITY OF LAWS. designed to restrict the practice of pharmacy to those only who were properly qualified and licensed, a physician "has no more right than any other person to step into a drug store, and to compound or sell drugs, medicines, to one not his patient." It was also contended on behalf of the defendant that the law conferred upon the board of pharmacy an arbitrary power to collect fees. The part of the statute involved in this point declares "The said board may grant under such rules and regulations as it may deem proper, at a fee not exceeding one dollar, the certificate of registered assistant to clerks or assistants in pharmacy not less than 18 years of age." It was held that the language of the section does not authorize the board "to fix fees arbitrarily, and to make a distinction between different individ- uals." As to both of these particular features of the statute, against which the attack was directed, its constitutionality was upheld. On another ])oint, however, the statute did not meet with un- qualified judicial endorsement. The defendant maintained that the amendment of 1887, provid- ing that no person shall vend patent or proprie- tary medicines by retail, unless he has been in the business of vending and retailing such med- icines for three years or more, was invalid. His objection thereto was urged upon the grounds that "it grants a monopoly to a favored few and PHARMACAL jrRISPRUDENCE. 153 for no adcMjiiate reason ; and that it is also an ob- ject in tlie law not embraced in tbe title, which reads, "An act to regulate the practice of phar- macy in the State of Michigan." The court ad- mitted the force of the argument, but, not deem- ing it essential to the case to decide the point, it left the matter unsettled.^ The provision last discussed seems open to the charge of being outside of the true scope of the police power of the State, and therefore an unwar- ranted and unconstitutional interference with the liberty of the citizen. The reason that justi- fies the rest of the statute seems to fail with re- gard to the part under consideration. Such a restriction upon the power to vend proprietary medicines, the mere sale of which requires no special care or skill as a safeguard to the com- munity, appears to lack the vital element which alone can excuse the State for interfering "with the conduct of individuals in their intercourse with each other, and in the use of their property." That element, in this case, would be the neces- sity or State obligation to protect the health of the community; and if the rule cannot be de- fended upon this principle, it ought to be de- clared unconstitutional, and such would proba- bly have been its fate had the court found it nec- essary to pass upon it. 1 People V. Moorman, 86 Mich. 433, 49 N. VV. 263, 9 Sup. Ct. Rep. 28, 32 L. Ed, 352, 11 U. S. Notes 621. 154 CONSTITUTIONALITY OF LAWS. In a Missouri case, a (juestiou was raised as to (he validity of a lejiislative act which conferred iipou a board of health the ])owei' to judge appli- cants to practice medicine, a.s to their moral character as well as to their literary and scien- tific attainments. It was contended that such a power was of a quasi-judicial nature, and that the exercise thereof by a board of health was re- pugnant to the constitution. The opinion of Mr. Justice Gantt in this case presents a learned discussion of the question and sustains the valid- ity of the act.^ Since boards of health, medical boards, and boards of pharmacy perform duties somewhat similar in this respect, the principle is of very general application with regard to this class of statutes. It will be apparent from the decisions cited in this chapter, that the general question, as to whether the laws regulating the practice of phar- macy in the ditferent States of the ITnion are con- stitutional, has been answered by the courts in the affirmative. The statutes of the Several States, on this subject, have been intended to ac- complish the same purpose in each, and they agree in their main features ; therefore, except in a few isolated cases where some special feature of the law, peculiar to some particular State, has been the point under examination, the decisions of the tribunals of the different States, with re- 1 State V. Hathaway, 115 Mo. 36, 21 S. \V. 1081. niAKMACAL JlRISI'Rl-DEXCE. 155 gard to the constitutional stains of these laws, are available as authority tiirouulKtiit all. It may be received as settled, dial the legisla- tures of the different States have authority to enact laws, of uniform operation, re<;ulatin.i; the practice of pharmacy within their several juris- dictions. In pursuance of this authority, the State may declare that no person shall engage in the practice of this particular calling, without being tirst duly licensed thereto, and may fix the terms upon which sueh license may be obtained. To this end it may designate Avhat degree of skill and learning shall be required of the licentiate, and may create or provide for the creation of a board of pharmacy, among whose duties shall be that of examining applicants for admission to the profession. It may likewise authorize such board to collect a fee from each applicant, Avhich fee "is merely an equivalent for the service ren- dered by the commission in making the examina- tion and issuing the license, and cannot be con- sidered as a tax upon the business, or as depriv- ing the applicant of his ju'operty without due process of law.'' We find that the terms "drugs, medicines, and poisons," as used in statutes regiilating the prac- tice of ])harmacy, have been held to mean "arti- cles whose iH'imary and principal use is iiieVlK'n» (he stalulc ]H'(»vi\' law, until after conviction by a court of conipeient jurisdiction, aud defendant pleads oujlty in such court, then, tliouiih the court nmy ueji'lect to make any further order in the case, vet tlie Board of Pharnuu-y may revoke the license. Its juris- diction is indeix'udent.^ 1 Munkley v. Hovt, (H) N. E. 413, 179 Mass. lOR; Common- wealth V. Hoviour, 66 S. \V. 323, Ky. Law Rep. 1724. 164 EXPLANATORY OF CONTRACTS. CHAPTER VIII. Explanatory of Contracts. The plan of this work requires us to touch, though rather lightly, upon the vast domain of contract law, the principles of which enter in some form into almost every relation of life. The business man's daily work, from the simplest exchange of values to the most complicated com- mercial problem, is a sort of network Avoven of contracts of greater or less magnitude; from which it follows that their interpretation and con- struction forms a great part of the civil business of the courts. A contract "is an agreement, upon sufficient consideration, to do or not to do a particular thing."^ Mr. ^torj and Mr. Parsons define it as "a deliberate engagement between competent parties, upon a legal consideration, to do, or to abstain from doing, some act." "There must be a person able to contract; a person able to be con- tracted with ; a thing to be contracted for; a suffi- cient consideration ; words clearly expressing the agreement ; and the assent of both parties to the same thing in the same sense."^ "A contract is resolvable into proposal and acceptance, the pro- posal not to bind beyond a reasonable time, and, until accepted, may be conditional. The place 1 Blackstone's Commentaries, Vol. 2, page 442. 2 Justice V. Lang, 42 N. Y. 497, 1 Am. Rep. 576. PHARMACAL U'RISPRUDEXCE. 165 and time of acceptauce are the place and time of the contraet. The assent must, he e and in this coiintrv, at least to the extent of the pnrc'hase price of the j^oods.^ Wlien, in the vear 1615, rarlianient passed tlie act by which tlie apothecaries or druggists were separated from the grocers and established as a distinct guild or corporation, the same legal status attended the apothecary as that which defined his operations as a grocer. lie was bound by the same obligation of warranty as to the quality of the articles sold by him. Indeed, it may be said that the stringency of the rule in its application to cases has increased rather than diminished, with the advancement of the drug- gist's standing and opportunities in modern times. However, the force of this rule of law which lays upon the dealer in drugs this extra- ordinary responsibility as to the quality of the goods sold by him is not merely historical ; for the fact is that the reason of the rule exists with greater significance in the case of the druggist than in the case of the grocer, from wliom he may be said to have descended. The rule of general application in the sale and purchase of goods is ''caveat emptor,'^ which warns the purchaser of any specific article that he must see to it that the thing purchased by him 1 Fleet V. Hollenkemp, 13 B. Mon. 219, 50 Am. Dec. 563; Van Bracklin v. Fonda, 12 Johns 468, 7 Am. Dec. 339, 3 Bla. Com. 165; Hyland v. Sherman, 2 E. D. Smith 234; Wright v. Hart, 18 Wend. 449; Burch v. Spencer, 15 Hun. 504; Miller v. Scherder, 2 N. Y. 267; Hoover v. Peters, 18 Mich. 51; Ely v. O'Leary, 2 E. D. Smith 261; McNaughten v. oy, 1 Weekly Notes Cas. 470. PHARMACAL U'RISPRUDENCE. 171 is such as he wants. Under this rule, in the ab- sence of fraud or misrei^resentation on the part of the seller, if the buyer does not secure the quality or kind of goods that he intended to pur- chase, the law will not hold the seller liable. The above rule applies where the sale is on in- spection, and the knowledge possessed by the vendee is eq\\i\\ to that of the vendor.^ It has even been held to apply in a case where goods had been ordered from the seller and the purchaser had not seen them until after delivery, on the theory that in such a case the vendee constitutes the vendor his agent to select the goods for him, and the former is bound only to the fair exercise of his judgment in making the selection.^ Nor is the purchaser relieved from the force of this rule when buying goods that are packed; as paint sold in kegs'^, crockery in crates^, flour in barrels^, hemp in bales^, tobacco in kegs", mo- lasses in barrels^. The rule as applied to flour and molasses in these examples might seem to be op- posed to the rule of guaranty which prevails in the case of provisions; but it must be remem- bered that tlie latter rule is applicable only to 1 Lord V. Grow, 39 Pa. St. 88, 80 Am. Dec. 504. 2 Dickson v. Jordan, 10 Ind. L. 166, 53 Am. Dec. 403. - Holden v. Dakin, 4 Johns 421. 4 Thompson v. Ashton, 14 Johns 316. 5 Hart V. Wright, 17 Wend. 267. 6 Salisbury v. Stainer, 19 Wend. 159, 32 Am. Dec. 437. 7 Hyatt V. Boyle, 5 Gill, and J. 110, 25 Am. Dec. 276. s Humphreys v. Comline, S Biackf. 516. 172 CONTRACTS. proA'isioiis sold "for (loiucstu' use"' and cannot be invoked wlieresueh articles are bought in the way of merchandise to be sold again.^ Such is the common law doctrine of ''caveat emptor/^ and the above instances will serve to show some of the legal and reasonable limits of its applications. In the case of the druggist, however, the rule may be said to be reversed and the civil law doctrine of ''caveat venditor/' wliicli warns the seller instead of the purchaser to be- ware, is applied upon equally reasonable grounds. In rendering a decision in a leading- American case, the Court said, "As applicable to the owners of drug stores, or persons engaged in vending dangerous medicines by retail, J:he legal maxim should be reversed. Instead of ''^caveat emptor" it should be '^'caveat venditor.'' That is to say, let him be certain that he does not sell to a purchaser, or send to a patient, one drug for an- other, as arsenic for calomel, cantharides for, or mixed with, snakeroot 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."- The druggist is lield not only to the common law guaranty, applicable to grocers, that the arti- cle sold by him is wholesome, but he is also deemed to warrant tliat it is tlie identical sub- stance asked for hy tlie purcliasei*. Tlie reason 1 Emerson v. Brigham, 10 Mass. 197, (> Am. Dec. 109. 2 Fleet V. Hollenkemp, 5(i Am. Dec. 563, 13 B. i\Ion. 229. PHARMACAF, J rklSPRUDEXCE. 173 of tliis nilo was clcnrly stnlcd by tlio Court in a Texas case ou appeal from tlie district court of (xalveston Coimty. In this case Jii(l<>e Watts said, ''It is claimed that in the sak' of cliattels, where the purchaser has au opportunity to exam- ine before the purchase is made, that the com- mon law rule of 'caveat emptor' applies without exception. As a general rule the doctrine does apply in the purchase of chattels, when an op- portunity for examination by the purchaser is shown. But when, from the nature of the arti- cle, or t\M peculiar character of the business in which the same is being sold, it is shown that an examination would not avail the purchaser any- thing-, it might constitute an exception to the gen- eral rule, dependent upon the circumstances of each particular case. The appellee was engaged in the business of diniggist, holding himself out to the public as one having the peculiar learning and skill necessary to a safe and proper conduct- ing of the business. The general customer is not supposed to be skilled in the matter, and, as rep- resented in this case, does not know one drug from another; but in the purchase of drugs, the customer must rely upon the druggist to furnish the article called for; and in this particular busi- ness, the customer who has not the experience and learning necessary to a ])roper vending of drugs would not be held to the rule that they must examine for themselves. It would be but 174 CONTRACTS. idle mockery for the customer to make the exam- ination, when it would avail him nothing. On the contrar}', 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."^ In brief, then, every druggist, simply as a dealer in drugs, is held to be bound by a contract of guaranty, to every purchaser unskilled in the nature of drugs, that the article sold by him is that which the purchaser has called for, and that the same is wholesome and of good quality. This rule, in itself, involves a grave responsibility, but the extraordinary liabilities of the pharmacist do not end with this. It is held, in a leading American case, that "It is his duty to know the properties of his drugs, and to be able to distin- guish them from each other. It is his duty to so qualify himself, or to employ those that are so qualified, to attend to the business of com- pounding 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 medicines, and none other, be used in mixing and compounding it."^ In fact, the pharmacist guarantees, to every person for whom he prepares a prescription, that he possesses the requisite scientific knowledge and skill to enable him to correctly compound the 1 Jones V. George, 56 Tex. 149, 42 Am. Rep. 689. 2 Fleet V. Hollenkemp, 13 B. Mon. 229, 56 Am. Dec. 563. PHARMACAL JURISPRUDENCE. 175 same. He contracts, not only to use drugs that are of the right kind and wholesome, but also, in compounding such drugs, to use ordinary skill and knowledge combined with ordinary care. And it must be remembered that in thus dealing with dangerous drugs, ^'ordinar}' care" means a degree of care in proportion to the risk. 176 LIABILITY OF DRUGGIST. CHAPTER X. Liability of Retail Druggist for Negligence. The Kentucky case of Holleukemp v. Fleet and Semple, known in the Kentucky Court of AppeaLs as Fleet y. Hollenkenip, is a leading case in the matter of the liability of retail drug- gists. The opinion of the Court was prepared b}' Justice Hise, and it is so direct and compre- hensiye in the treatment of the subject, that it is thought best to present the entire text of the opinion for the perusal of the student. 'SJolm Holleukemp sued William T. Fleet and Samuel P. Semple, partners in the business of yending drugs by retail, in an action upon the case, for haying, through negligence, permitted a portion of the poisonous drug called 'canthar- ides' to be intermingled with some snakeroot and Peruvian bark which he had purchased at their drug store, and which he, being then indisposed, l)y the adyice of his i^hysician, had taken as med- icine for his restoration, not knowing that the poison had been mixed with the bark and snake- root, and that in consequence he had been yery sick, endured great suffering, pain, and agony, and that his health had been thereby permanent- ly injured. The defendant appeared, and plead- ed not guilty. There was a trial, verdict, and judgment against the defendants for one thou- PHARMACAL J URISTKUDENCE. 177 sand oue Imiidrt'd and forty dollars and seventy- five cents damages, and costs of suit. "The defendants moved the Court to set aside the verdict and judgment, and s sent for by the l)laintiff was caused by improperly pulverizing the root and bark, by uTinding them in the same mill in which Spanish flies had been previously ground. ''To sustain the ground taken for a new trial that new evidence had been discovered pending the trial, which circumstances rendered unavail- able, the defendants rely upon the affidavits of Keulun Broaddus and T. N. Wise. Hroa\iiat he knew upon the subject was not discov- ered to the defemhiuts until their attorney had commenced his argument to the jury. ''Assume these statements to be true, they do not sustain the motion for a new trial; because: First, if the testimony of liroaddus Avould have been important in aid of the defense, upon mo- tion to the court, based upcm the facts stated, the argument of the cas(» would have been suspended, and Broaddus might have been sworn as a wit- ness, and would have been allowed lo give evi- dence to the jury before their retirement. But 182 LIABILITY OF DRUGGIST. although the witness was present, and defendants knew what he w^oiild prove before the case had been given to the jury, they did not offer to intro- duce him : Higden v. Higden, 2 A. K. Marsh. 42, 43. Second, because the defendants, from the facts in the record, are convicted of negligence in respect to their preparation of their defense. It appears that at the term preceding that during which the trial took place the cause had been fully investigated before a jury, and the evidence heard, but the jury failing to agree, there was a mistrial. The same evidence for the plaintiff was no doubt then given to the jury upon which he relied in the first trial; and the defendants had ample time, by reasonable inquiry, to have pro- cured witnesses to establish the fact of the im- portance of which they could not have been igno- rant, if it could have been done, to wit, that the ill health of the plaintiff had been of long stand- ing and not of recent origin, "As bearing upon the question of the amount of damages to be given by the jury, the plaintiff on the final trial, and, as is supposed, at the pre- vious mistrial, introduced proof to the effect that his general health was good; the defendants could and should, therefore, by the exercise of due and proper diligence, have procured counter- vailing evidence, if the fact existed, to show that plaintiff's bad health had previously existed ; and that it was not, therefore, caused by the drugs PHARMACAL JURISPRUDENCE. 183 prepared for liim by them or tlieir elerk. The present ill health of the plaintiff, and its true cause, was the main point of fact in issue and contested before the jury; and the defendants stated the case upon their preparation, as made, and cannot be indulged with a new trial because they may have ascertained during the trial that they could have strengthened their proof upon the issue in question, and especially when their witness was present before the argu- ment to the jury was closed, and they might have had the benefit of his testimony upon application to the court : Chambers v. Chambers Adm'r, 2 A. K. Marsh. 349 ; Wells v. Phelps, 4 Bibb. 563. "The affidavit of Dr. Wise does not give any material streng-th to the demand for a new trial. He merely states that he had visited the plaintiff professionally since he had taken the compound prepared for him at the drug store of the defend- ants, and that his -opinion was that plaintiff's disease was an affection of the mucous membrane of the stomach and bowels, and not connected with the kidneys and bladder, or urinary organs. It is not perceived how Dr. Wise's statement could have produced a different verdict of the jury necessarily; for the disease attributed to the plaintiff l>y Dr. Wise may well have been pro- duced by the cantharides taken by him. The proof in the cause of its effects, and generally of the symptoms and effects exhibited by the plain- 184 LIABILITY OF DRUGGIST. tiff, as eouseqiieut \\\)(m the dose administered to him, would make the coneliision reasonable that his disease as described by Dr. Wise, was thereby produced. "The defendants have not shown that Dr. Wise's testimony, had it gone to the jury upon the trial, either could or ought to have induced the jury to have rendered a more favorable ver- dict for the defendants: Barrett v. Belshe, 4 Bibb., 349. So far, therefore, as the motion for a new trial was predicated upon the affidavits of Broaddus and Wise, and the accompanying af- iidavits of the defendants, it could not liave l)een properly sustained. "Tlie next question presented is, that the Court should have sustained the motion for a new trial, because the damages are excessive. "There is no fixed and certain criterion of damages for personal injuries, similar to those sustained by the plaintiff in this action. The question as to their amount is within the sound and reasonable' discretion of the jury. The dam- ages given may be more or less exemplary, or otlierwise, as the circumstances of aggravation or extenuation characterizing each particular case may reasonably require. "There is a class of personal injuries, such as slander, libel, malicious prosecution, and includ- ing injuries to a person's health, business, and property, caused by indirect means, unattended PHARMACAI. TrRisruroENCE. 185 with force, aud for redress of wliich the remedy is by au action upon tlie case, and not hy tlie action of trespass, for wliidi a jnry may give exeniplai'y damages, as well where the action is in case as when it is in trespass; and whether exemplary damages shonld or slnmld not he given does not depend ujDon the form of action so mnch as upon the nature and extent of the injury done, and the manner in which it was inflicted, whether by negligence, wantonness, or Avith or without mal- ice: Merills v. Tariff Manufacturing Co., 10 Conn., 388 (27 Am. Dec. ('.82, and notes) ; Linsley v. Bushnell, 15 Conn. 235, 38 Am. Dec. 79; Mc- Lane v. Sharpe, 2 Harr. (Del.) 181. "In the present ease the damages given by the jury cannot be regarded as so excessive as to authorize this court to reverse the judgment on that ground. From evidence in the cause, the jury had the opportunity and the right to decide the question of fact as to the extent of the injury done to the plaintiff's health, and if the injury was considerable, protracted, or permanent, the amount of the damages found by them was, if even sufficient, not excessive, and the verdict and judgment ought not, on that ground, to be dis- turbed. "But it is urged that tlic circuit judge im- properly instruct(Ml the jury u])on the law of the case. T"^pon motion of the attorney for the ])lain- liff, tlic conrl ii'avc tlic following instruction: 186 LIABILITY OF DRUGGIST. No. 1. 'If the jury believe from the evidence that the defendants Fleet and Seniple, were the pro- prietors of the drug store in the city of Covington at which the prescription, alluded to in the evi- dence, made for tlie ])laintiff hy Dr. Whitehouse, was compounded, and that said prescription, as put up at said drug store, contained Spanish flies, or cantharides, and that the plaintiff, in consequence of taking a part of it, was made sick or injured thereby, they ought to find for the plaintiff, even although they may believe that defendants Avere ignorant of the fact that said prescription did contain said ingredient.' Al- though the words of this instruction are injudi- ciously selected and arranged, yet, if its meaning is not misapprehended, it embraces in its terms a proposition of law pertinent to the case and ap- plicable to the facts presented to the jury by the evidence. Of course the attorney who wrote the instruction, and the judge who gave it, in using the expression as to the 'prescription containing Spanish flies,' and as to the plaintiff's having taken a portion of the prescription, etc., have reference to the mixture compounded at the drug- store, and not to the written prescription of the physician, intended as a direction to the drug- gists as to the drugs to be compounded. "If the plaintiff sent a prescription to the de- fendants' drug store containing directions that snakeroot and Peruvian bark in certain quanti- \ PHARMACAI. JURISPRUDENCE. 187 \ ties should be furnislied, jivoiind into powder, and mixed; tlieu, if the «h'feii- store, in tilling such prescrij)- tion, whether ignorantly or h\ design, whether with or without the knowledge of the defendants, they, being proprietors, did intermix the ])oison- ous drug oantharides, or S])anish tlies, with the bark and snakeroot, and if, in taking this prepa- ration or mixture as medicine, the plaintiff was injured, the defendants, being owners of the drug store, are legally responsible in damages to the plaintiff for the accident, if it was one, and for the outrage, if it A\as designed. ''It is a well established rule and principle of law, that the vender of provisions for domestic use is bound to know that they are sound and wholesome, at his peril : Van Bracklin v. Fonda, 12 Johns. 408 (7 Am. Dec. 339). It is a sound and elementary principle of law, that in con- tracts for the sale of provisions, the party by im- plication, who sells them undertakes that they are sound and wholesome : 3 Bla. Com. 165. "In 3 Bla. Com., by Chitty, 91, it is laid down in general terms: 'Injuries affecting a man's health are where, by any unwholesome practices of another, a man sustains any apparent damage in his vigor or constitution, as by selling him bad provisions or wine, by the exercise of a noisome trade, or by the neglect or unskilful management of a physician, or apothecary — these are wrongs 188 LIABILITY OF DRUGGIST. or injuries iiiiacoompanied by force for wlncli there is a remedy in daniaii'es by a special action on the case.' "Now, if a man who sells fruit, \yines, and pro- visions is bonnd at his peril that what he sells for the consumption of others shall be good and wholesome, it may be asked emphatically, is there any sound reason why this conservatiye principle of the law should not apply with eipial if not Avith greater force to vendors of drags from a drug store, containing, as from usage may be presumed, a great variety of vegetable and mineral substances of poisonous properties, which if taken as medicine will destroy health and life, and the appearance and qualities of which are known to but few, except they be chemists, dnig- gists, or physicians. ''The purchasers of wines and provisions, by sight, smell, and taste, may be able, without in- curring any material injury, to detect their bad and unwholesome qualities ; but many are wholly unable, by the taste or appearance of many drugs, to distinguish those which are poisonous from others which are innoxious, so close is their re- semblance to each other; purchasers have, there- fore, to trust the druggist. It is upon his skill and prudence they must rely. It is therefore in- cumbent upon him that he understands his busi- ness. It is his duty to know the properties of his drugs, and to be able to distingnisli tliem rilARMACAl, JURISPRUDENCK. 189 from each other. It is his duty so to ([iialifv him- self, or to emijloy those that are so (]ualifie{l, to attend to the business of conipoundiui;- and vend- ing- medicines and drugs, as tliat one drug may not be sold for another; and so that when a pre- scription is presented to be made up, the proper medicines, and none other, be used in mixing and compounding it. As applicable to the owners of drug stores, a person engaged in vending drugs and medicines by retail, the legal maxim should be reversed. Instead of 'caveat emptor,' it should be 'caveat venditor.' That is to say, let him be certain that he does not sell to a pur- chaser or send to a patient one drug for another, as arsenic for calomel, cantharides for or mixed with snakeroot or Peruvian bark, or even one innocent drug, calculated to produce a certain effect, in place of anotlun' 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; that he liad been very careful and particular, and had used extraordi- nary care and diligence in preparing or com- pounding tlie medicines as required, etc.; such excuses will not avail him, and he will be liable, at the suit of tbe ])arty injured, for damages at the discretion of a jury.' 1 Hanford v. Payne, 11 Busli. 380; Tessymond's Case, 1 Lewin's Crown Cases, page 169. 190 LIABILITY OF DRUGGIST. The defendants' attorney moved the court to instruct the jury as follows : 1. If from the cah- dence the jury believe that the defendants, in preparing the prescription, used due and reason- able skill, care, and diligence, they must find for defendants. 2. If from the evidence the jury believe that the defendants, in putting up the prescription, used extraordinary or unusual care, they must find for the defendants. These in- structions were not given but properly refused by the court. The rule as to the degree of care and diligence necessary to be used in certain cases to exempt a party from liability, and as to the extent or degree of negligence necessary, to devolve civil responsibility upon the party guilty thereof, do not apply to the present and similar cases. It is absurd to speak of degrees of dili- gence and of negligence as excusing or not ex- cusing, or as settling the question of liability or no liability, in a case where a vendor of drugs, being required to compound innocent medicines, runs them through a mill in which he kncAV a poisonous drug had shortly before been ground. If mistake or accident would excuse the sending of a medicine different from that applied for, which we do not admit and cannot readily con- ceive, there could have been neither mistake nor accident in this case, because the fact of the pre- vious use of the mill was known to the vendors, and they are absolutely responsible for conse- or PHARMACAI. URlsrUUDENCE. 191 (]noii('('s which that kiioAvltMliie enabled them and made it their dnty to avoid. Even accidents or mistakes shonld not occnr in a business of this nature, and they cannot ordinarily occur without there has been such a degree of culpable, if not wanton and criminal, carelessness and neglect as must devolve ui)on the party unavoidable and commensurate responsibility. AVe were asked by the attorneys in their argument, with some em- phasis, if druggists are to be, in legal estimation, regarded as insurers.' The answer is that 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. Sound public pol- icy in relation to the preservation of the health and even of the lives of the people would seem to require that this rule should have a rigid and in- flexible application to- cases similar to the one under consideration. "As the responsibility of the defendants in this case does not depend upon the degree of care or diligence or negligence used by them, but upon the naked fact that when re(iuested to compound a merlicine for plaintiff, to be composed alone of snakeroot and Peruvian l>ark, the preparation sent to the plaintiif contained also the poisonous drug cantharides, which had been recently ground in the same mill, the taking of Avhich caused him 192 LIABILITY OF DRUGGIST. great pain, siiffering-, and sickness, if it has not permanently injnred his health, the instructions asked by the defendants were i^roperly refused. "The instruction upon the subject of damages, given by the court in lieu of the one asked by plaintiff's attorney, though framed and ex- pressed in language not so well chosen and adapted to present the proposition of law therein intended to be set forth as other language would liave been, yet, as understood, the instruction is in substantial conformity to the views of this court as expressed in this opinion. Wherefore the judgment of the Circuit Court is affirmed.'- In the foregoing opinion, the court says it is absurd to speak of degrees of negligence in a case like the one under consideration. The failure to clean the mill in which the Spanish flies had been ground, though it was known that it might ])e needed at any moment to grind other drugs, was, manifestly, such gross negligence on the part of defendants, that it offers no room for the consid- eration of degrees. The druggist or pharmacist is required to pos sess and use reasonable or ordinary knowledge, skill, and care in the practice of h^"s profession. But it must be borne in mind that the term "ordinary," when used in this connection, may express the widest possible meaning, and that its force varies with the degree of risk involved. PHARMACAI, JURISPRUDENCE. 193 Fn the ronipoTiiidiiiii- or hniulliiiii- of drills that are dangerous to life or health, "ordinary" rare means nothino: less than the utmost care; and the (miission to employ any necessary ])re<'anli()n- ary measure, such as that of cleaning a mill after grinding Spanish flies in it, amounts to gross negligence. In this case the facts of negligence are so ag- grayated in their nature, that in applying the principles of law to the responsibility of the de- fendants, the court seems to haye stated it a little too strong against the druggist in general. The rule that is here inyoked as goyerning the liability of yendors of proyisions, that is, that the yendor "undertakes and insures that the ar- ticle is wholesome," is certainly of limited ap- plication in this age and country, except so far as pertains to the recoyery of the purchase price of the article sold. Beyond this responsibility for the price of the gt)ods. Aye belieye that the liability of the yendor of proyisions for selling an unwholesome article, as the law now stands, would inyolye in its determination the question of negligence as an important factor. Certainly, the law does not make the druggisi an insurer, and questions of knowledge, skill, and care are fundamental in determining his li- ability for mistakes. The following extract from an opini(m submitted by Judge Cooley, in the Michigan case of Krown y. Marshall, -17 Mich., 194 LIABILITY OF DRUGGIST. 576, 41 Am. Kep. 728, 11 N. W. 392, we believe to be absoluteh' soimd on this point : '"The ques- tion is whether the delivery at a drug store of a deleterious drug to one who calls for one that is harmless, and a damage resulting therefrom, of themselves, give a right of action, even though there may have been no intentional wrong and the jury may believe there is no negligence. That such an error might occur without fault on the part of the druggist or his clerk, is readily sup- posable. He might have bought his drugs from a reputable dealer, in whose warehouse they have been tampered with for the purpose of mischief. It is easy to suggest accidents after they come to his own possession, or wrongs by others, of which he would be ignorant and against which a high degree of care would not give perfect pro- tection. But how misfortune occurs is unim- portant if, under all circumstances, the fact of occurrence is attributable to him as a legal fault. The case is one in which a high degree of care may be required. * * * It is proper and reasonable that the care required shall b.e proportionate to the damages involved. But we do not find that the authorities have gone so far as to dispense Avith actual negligence as a neces- sary element in the liability when a mistake has occurred." In the case of Thos. J. Norton, et al., v. An- drew B. Booth, 34 La. Ann. page 913, the plain- PHARMACAI. irRISPRrOFNCE. 195 tiff sues tlu' (lefeiulaiit to recover the sum of ten thonsaiul dollars as damages, for having; caused the death of a person hy his neiilioent error. The plaintiffs allege "that their daughter, Eleanor, was, in September, 1S78, the minor wife of G. W. Norton, and then in a state of advanced preg- nancy; that, owing- to her condition, she needed and sent for a dose of epsom salts at defendant's store. Avhere drugs and medicines are sold; that, through negligence, carelessness and want of skill, he sold and delivered, being- paid therefor, instead of said salts, a dose of sulphate of zinc, a deadly poison; that this medicine was admin- istered, and caused first, the death and bringing forth of the child their daughter was pregnant with, and, second, the death of the mother her- self, after endurance of lasting, terrible and ex- cruciating pains." In the opinion rendered in this case. Chief Justice Bermudez sa^s : ^'In the discharge of their functions, druggists and apothecaries, per- sons dealing in drugs and medicines, should be required not only to be skilful, but also exceed- ingly cautious and prudent, in view of the ter- rific consequences which may attend, as they have not infrequently in the past, the least inatten- tion on their part. Cooley on Torts, pp. 75, 76, 048-9. All persons who deal with deadly poisons are held to a strict accountaI)ilily for tluMr use. The highest degree of caic known among i>racti- 196 LIABILITY OF DRUGGIST. cal men iiiii^^t be used to ])revent injury from the use of such poisons.^ A druggist is undoubtedly lield to a special degree of responsibility, for the ( rr(meous use of jxtisons, coiTesponding with his superior kn()^^iedg(' i\\' tlie business. Thomas v. Wiiieliester, (> X. Y., .'>!I7, Td Am. Dec. 455 and notes; Fleet v. lIollenkem]», 18 B. Mon. 219, 56 Am. Dec. 5(13; Sherman and Kedfield on Neg- ligence, 592." 1 Peters v. Johnson, 41 S. E. 190, 50 W. Va. 644, 57 L. R. A. 428, 88 Am. St. Rep. 909 and notes; McVeigh v. Gentry, 76 N. Y. Supp. 535, 72 App. Div. 598. PHARMACAL JU RISPRU DEXCE. 197 CHAPTER XI. LiAP.iLi'L'Y Fou Ekkor IN Prki'Auin(; PuKsruir- TIONS. We are now to consider tlie work of the drug- gist in his more scientific character. In other words, it is the pliarmacist or slcilled man of science whose lejial responsihilitics claim our at- tention. In the chapter of this book that treats of the application of tlie principles of contracts, it is explained that the pharmacist is, in the eje of the law, nnder an implied contract with every per- son with wliom he deals professionally, that, in rendering- to him his professional services, he will nse ordinary knowledge, skill, and care. In the last chapter we called attention to the fact that the meaning of the word "ordinary" here, as ap- plied to care, varies with the degree of risk im'olyed, and that it may mean the highest pos- sible degree of care. It mnst be remembered, also, that the same word, in its application here to knowledge and skill, is to be understood in the light of science and progress. It is the "ordi- nary" kno^yledge and skill of the educated and traintnl pharmacist that is here re(inired by law, and in every issue involving questions as to the exercise of the required degree of knowledge or skill, it is necessary for the court to consider the degree of advancement to Avhich tlie science of 198 LIABILITY FOR ERROR. pharmacy lia.s attained, at the time that the cause of action arises. The legal history of the practice of pharmacy discloses the fact, that many serious injuries, and occasional deaths, iiave occurred through errors in compounding the jn'cscriptions of pliysicians. In a Louisiana case, entitled William McCub- l)in, Tutor, v. Samuel Hastinos. reported in 27 La. Ann. page 715, are found the gruesome rec- ords of one of these mistakes. We here present the facts of the case as reviewed in the opinion of the court. ''On Monday, the twenty-sixth of August, 18G7, the wife of William ]McCubbin was attacked with j^ellow fever. A physician Avas immediately called in, and the patient was placed under the charge of a nurse. ''On the Wednesday following she was quiet. About one o'clock of that day the physician or- dered her an enema. \ye are satisfied from the evidence that the enema as ordered was to have been composed as folloAvs : Sulphate of quinine thirty grains, mucilage of gum Arabic four ounces, camphor water four ounces, Batley's sed- ative solution, thirty or sixty drops, to be ad- ministered one half as soon as received, the other in an hour after. We ascertain the com- ponent parts of the prescription from the testi- mony of the physician, as the prescription itself could not be found in the defendant's shop where PHARNfACAI. JURIsrRrOENrE. 190 it should lijivo been kept. 'IMic ]>irsu was ordered by (he physician to be «-onipo\iii(hMl at the (k^feudant's sho}). The husband of the de- ceased took it there, lie handed it to an em- ployee. After it was eoniponnded he purehased an injection pipe, paid for both, and left, lie gave them to the mirse. She administered a ])ortion of it. The effect se^ems to have been in- stantaneous. It threw the unfortunate woman into spasms, and convulsions, causing her to purge and vomit at the same time. The attend- ing phj'sician >\as immediately sent for. He could not be found, and reached his patient late at night. He did all that his science allowed him to do for her relief. He called in another phy- sician. Their efforts were fruitless. Two days after the patient died. ''This suit is instituted by the husband of the deceased and the father of her child, a minor, against the defendant to make him responsible in damages for the death of this woman, the al- legation being that the prescription was improp- erly compounded. "The evidence leaves no doubt on our mind that spirits of camphor was substituted for camphor water; that the sufferings of the woman, which are shown to have been intense, were caused by this mistake, camphor water being a very inno- cent preparation ; spirits of camphor being a de- coction of camphor and alcohol ; and that it 200 LIABILITY FOR ERROR. contributed to a large extent, if it did not abso- lutely cause the death of the patient. "The prescription was not compounded bv the defendant. At the time it Avas put up he was not in the city. The clerk had not been employed by him. His services had been engaged by his brother. The defendant is none the less respon- sible for his acts. The employment was au- thorized, and his responsibility for the acts of his employees cannot be disputed. "The case was twice tried before a jury in the Fifth District Court. It was then, by consent, remanded to the Fourth District Court, and sub- mitted to the judge alone. He decided in favor of the defendant, and the plaintiff has appealed." In speaking of the damages claimed on behalf of the plaintiff and the minor child, the court says : "His damages, if he is entitled to any, is the amount expended by him for medical and other services subsequent to the giving of the enema, and for the funeral expenses. "The right to damages on the part of the child is that which he inherits from his mother. "The defendant filed a peremptory exception to plaintiff's demand on the ground that the pe- tition disclosed no cause of action. This excep- tion was filed after the jury had been empaneled. The grounds upon which it rests are, first, ^be- cause it is not alleged that the damage com- plained of was suffered through the fault of the PHAKMACAl. U'RIDKNCE. '201 (IcIViKhiul, ;iiiards the no- tice, she mioht have died of yellow fever and still her death from that disease miiiht have been caused by the enema. If a pistol had been fired into some fleshy part of her body Avhile she was laborino- under an attack of fever, the ball itself mioht not have produced death, but the shock by ajjgTavatino; the fever probably avouUI. T'^nder these circumstances she jirobably would have died of yellow fever, but her deatli would have been superinduced by the shot. So in this case. "The deceased was suffering under an attack of yellow fever. It was a violent attack. Quiet and repose were of all things most necessary to her safety. She was dangerously ill, it is true. But she had at least one chance for her life, and the injecting of the violent and exciting sub- stance (into a particularly sensitive ]>()i'li()ii of the body) took, in our opinion, from the iint'or- 204 LIABILITY FOR ERROR. tiinate womau the one ehaiiee that was left to her. She died, it is true, from yellow fever, but it was the enema which made the fever result fa- tally. "The next ground of defense is, that defend- ant cannot be condemned, unless the plaintiff proves that he was some way in fault, and that he really might have prevented the act which caused the damage. In one sense it was impossible for him to have prevented the calamity, because he was not in the city. But, if a master is onlj^ to be held responsible for the act of his servant when he might have prevented the act and did not, there would be no responsibility in the principal, except for such acts as were done in his presence. If this were the law, if the driver of a carriage owned by the keeper of a public stable, wantonly ran into and destroyed the carriage of another, the owner of the public carriage would not be held responsible for the damage caused by his servant, because it was no fault of his that the other carriage was run into. "If a man is run over by a careless car driver, the company in whose employ the driver is, can- not be held responsil)le, because it was not the company's fault. But we know that this has never been considered law, and thai where in- juries have occurred as the result of carelessness on the part of employees of such parties, the ])riii- cipals have been made to refund in damages. PHARMACAI. JURISPRUDENCE. 205 He further attempts to exculpate himself, from the fact that the clerk who compounded the pre- scription was reputed to be a competent drug- gist. To a certain extent he has established this : that is to say, he has produced a number of wit- nesses who testify in that direction. But there is one recommendation which he did not have, and that was a diplonui. It is not pretended that he was a graduate in pharnuicy from any medical institute. "It may, however, be assumed that he was competent. The defencbmt's liability would be none the less certain. The defendant is himself represented as being a most competent druggist. If he had made the mistake, would his proficiency in his calling shield him? Incompetency and carelessness — and such mistakes arise from one or the other of these causes— result in the same way. Either or both produce suffering and some- times death. And ran it be that if a i)hysician should prescribe for his slightly ailing patient a small quantity of calomel and soda, and the druggist were to substitute arsenic for soda, that he could shield himself from the consequences which might result, by saying, if the prescription was compounded by himself, that it was a mis- take, and if the act of his servant, that he could not have prevented it? The law does not place a community in the position of being poisoned by mistakes, with no one to be held responsible 206 LIABILITY FOR ERROR. therefor. If it was the master Avho did the wrong, tlie master is responsible. If it was his servant who did it, he is still responsible, for the master is responsible for the acts of his servant when done in the course of his usual employment. "The least serious defense set up is, that the enema did the patient no harm. Many physi- cians were examined upon this point, and counsel for the defendant, in the very able brief which he furnished us, says: 'With surprising unani- mity, these physicians, every one of whom have had large experience in the treatment of yellow fever, declared the effect would have been bene- ficial rather than injurious.' "As we have said before, ]Mrs. ]McCubbin was taken ill on ^Monday, the twenty-sixth of August. On the Wednesday following the enema was ad- ministered. I^p to this time the patient had been quiet. The nurse says that, turning into the third day, the fever began to abate and the phy- sician said he found her much better; that he was going to order a mixture that would act like a charm, as she was not sweating freely enough. The enema came and this is how the nurse, who administered it, described the effects : 'As soon as I gave it to her she commenced to complain; she said, 'Oh, nurse, don't give me any nu)re, for God's sake! It will kill me.' I set the cup down on the bed and called ]McCubbin (who had left the rooui at his wife's request when the nurse was PHARMACAI. JURISPRUDENCE. 207 about to administer tlio enema) and told him the injection made her very ill. It made her that ill it threw her into spasms. She eommeneed throwing up and pnrgini;- down, and wms in mreat agony, but got easier afterwards.' "McCubbin swears that, when he got upstairs, his wife was straightened out and almost black in the face, and apparently in spasms or a fit. He says: 'I put my hands underneath her to raise her from the bed ; she worked in the spasms about three minutes, and in her spasms both purged and vomited at the same moment, which seemed to give her some ease. 'Oh, my God, Will,' she said, 'what have you given me? I am all on fire! I am burning!' and so she kept on. You could hear her until ten o'clock at night a block off, and she had never made a moan before." "The attending physician was sent for immedi- ately. It was a season of calamity. The physi- cian was in full prfictice, and, hurrying as he was, from patient to patient, could not be found. Late in the night he came of his own accord. Discov- ering her condition, he immediately denounced the mistake which had been made; said to sev- eral who were present, and at varicms times, that the injection had injured her; took the bottle himself to the druggist to see whether, perchance, he had made the mistake in writing out the for- mula, and is shown to have said that, but for the injection, his patient would have done well. He 208 LIABILITY FOR ERROR. (lid all in his power to remedy the evil which had been done. Nothing thut was tried for her relief succeeded. She sank liradually from the time the enema Avas administered until three days afterward, when she died. "When scientific gentlemen undertake to tell us, under such a state of facts, that the enema, as administered, was a benefit to the patient instead of an injury; tliat a substance as powerful as alcohol, in which camphor, a violent stimulant, lias been dissolved, can be injected into one of the tenderest parts of the human frame, when the patient is suffering from a severe attack of such a disease as the yellow fever is, without doing any harm, but, on the contrary, doing good, we see in our mind's eye the unfortunate victim upon whom the experiment lias been tried, as she is described by the witnesses, writliing in agony, dying, dead, and we say that that dreadful fact alone destroys all th(Mr theories; and we think that he who, by himself or those for whose acts he is responsible, caused this agony, not to say death, should be made to answer for the suffer- ing which he caused. "As regards the damages, the plaintiff has not shown what he expended, and therefore we can give him no judgment. As to the minor child, we think he should receive twenty-five hundred dollars. PHARMACAI, JURISPRUDENCE. 209 "It is tlK'i-cfoi'c onU'ird, a(ljii(l^«'(l and dccired that the jndtiineiit of the district eoiirt be void- ed, animHed and reversed, and it is now ordered, adjudgetl and decreed that there be judgment in favor of the plaintiff, William MeCubbin, in his capacitv as tutor to his minor child, William James MeCubbin, and against the defendant, in the sum of twenty-five hundred dollars, with legal interest from judicial demand, and costs of suit in both courts." ''AVyly, J., dissenting. The physicians who testified in this case all agreed that if the mis- take had occurred in filling the prescription, and spirits of camphor instead of camphor water had been used, it would have improved the prescrip- tion and the result would have been beneficial in- stead of injurious to the patient. The opinion of experts is evidence. And according to the evidence, no injury resulted from the alleged mis- take of defendant-8 clerk. The case should be decided according to the evidence in the record, and from it, it appears no damage was done. Be- sides, the proof fails to establish with legal cer- tainty the fact that a mistake occurred. Both a mistake and an injury must be shown in order to recover. I dissent in this case. "Kehearinu- refused.'' 210 LIABILITY OF MANUFACTURER. CHArTER XII. Liability of Manufacturing Phak:macists. In dealing- with this subject the same method will be pursued as that employed in the last chapter. The law herein has been exhaustively presented and ably discussed in the leading case, Thomas v. Winchester, (5 N. Y. 397; also re- ported in Vol. 57 of Am. Dec, 455, and mono- graphic note. This was an action in the supreme court of the State of New York, commenced in August, 1849, against Winchester and Gilbert to recover dam- ages on account of injuries, allegied to have been sustained by INIrs. Thomas, from the effects of a quantity of extract of belladonna, administered to her by mistake as extract of dandelion. In the Court of Aj^peals, Euggles, Chief Jus- tice, delivered the following opinion, in which the facts of the case are set out with sufficient fullness to form a basis for the legal reasoning of the distinguished jurist. By the Court, Ruggles, C. J. "This is an ac- tion brought to recover damages from the defend- ant for negligently putting up, labeling, and sell- ing as and for ilic cxlvacl of (hiii(h'li(m, which is a sim])I(' and harmless medicine, a jar of the ex- tract of liclladonna, whicli is a deadly poison; by means of which the plaintiff, Mary Ann Thomas, to whom, being sick, a dose of dandelion was niARMACAL JITRISPRUDENCE. 211 prescribed by a pliysiciaii, and a portion of the (•(Hitents of the jar was administered as and for tlie extract of (bmdclion, was jireatly injnred, etc. The facts proved wci'c l>i'ietly tliese: Mrs. Thomas beinii' in ill licultli, her jdiysician pre- scribed for her a dose of (hiiKhdion. Her hus- band purchased wliat was Ixdieved to be the med- icine prescribed, at the store of Dr. Foord, a phy- sician and drugi;ist in Cazenovia, Madison County, where the plaintiffs reside. A small quantity of the medicine tlius pur- chased was administered to Mrs. Thomas, on whom it produced very alarniin<>- effects, such as coldness of the surface and extremities, feeble- ness of circulation, spasms of the muscles, giddi- ness of the head, dilation of the pupils of the eyes, and derangement of the mind. She recov- ered, however, after some time, from the effects, although for a short time her life was thought to be in great danger. The medicine administered was belladonna, and not dandelion. Tlie jar from wliicli it was taken was labeled '1-2 lb. dandelion, pr(^i)ared by A. (Jilbert, No. 108 John Street, N. Y. jar 8 oz.' It was sold for and Ixdieved by Dr. Foord to be the extract of dandelion, as labeled. Dr. Foord purchased the article as the extract of dandelion from James S. Aspinwall, a druggist at New York. Aspinwall bouglit it of the de- fendant as extract of dandelion, Itelieving it to be 212 LIABILITY OF MANUFACTURER. such. The defendant was engaged at 108 John Street, New York, in the manufacture and sale of certain vegetable extracts for medicinal pur- poses, and in the purchase and sale of others. The extracts manufactured by him were put up in jars for sale, and those which he purchased were put up by him in like manner. The jars containing extracts manufactured by himself and those containing extracts purchased by him from others were labeled alike. Both were labeled like the jar in question, as 'pre- pared by A. Gilbert.' Gilbert was a person em- ployed by the defendant at a salary as an assist- ant in his business. The jars were labeled in Gilbert's name because he had been previously engaged in the same business on his own account at No. 108 John Street, and probably because Gil- bert's labels rendered the articles more salable. The extract contained in the jar sold to Aspin- wall, and by him to Foord, was not manufactured by the defendant, but was purchased by him from another manufacturer or dealer. The ex- tract of dandelion and the extract of belladonna resemble each other in color, consistence, smell and taste; but may on careful examination, be distinguished the one from the other by those who are well accpiainted with these articles. Gilbert's labels were paid for by Winchester and used in his business with his knowledge and assent. PHARNfACAL J URISPRUnENCE. 213 The defeiidaut's coimsel moved for a nousuit ou the following- grounds: 1. That the action could not be sustained, as the defendant was the remote vendor of the article in question ; and there was no connecting transaction or privity between him and the plaintiffs, or either of them. 2. That the action sought to charge the defend- ant with the consequences of the negligence of Aspinwall and Foord. 3. That the plaintiffs were liable to and chargeable with the negligence of Aspinwall and Foord, and therefore could not maintain this action. 4. That according to the testimony Foord was chargeable with negligence, and the plaiutitfs therefore could not sustain this suit against the defendant; if they could sustain a suit at all, it would be against Foord only. 5. That this suit being brought for the benefit of the wife, and alleging her as the meritorious cause of action, cannot be sustained. 6. That there was not sufficient evi^lence of negligence in the de- fendant to go to the jury. Tlie judge overruled the motion for a nonsuit, and the defendant's counsel excepted. The judge among other things, charged the jury, that if they should find from the evidence that either Aspinwall or Foord Avas guilty of negligence in vending as and for dandelion the extract taken by Mrs. Thomas, or that the plain- tiff, Thomas, or those who administered it to Mrs. Thomas, were chargeable with negligence in 214 LIABILITY OF MANUFACTURER. adiiiiiiistering it, the plaintiffs were not entitled to recover; but if they were free from negligence, and if the defendant, Winchester, was gnilty of negligence in putting up and vending the ex- tracts in question, the plaintiffs were entitled to recover, provided the extract administered to Mrs. Thomas Avas the same which was put up by the defendant and sold by him to Aspinwall, and by Aspinwall to Foord. That if they should find the defendant liable, the plaintiffs in this action Avere entitled to recover damages only for the personal injury and suffering of the wife, and not for loss of service, medical treatment, or ex- pense to the husband, and the recovery should be confined to the actual damages suffered by the wife. The case was properly brought in the name of the husband and wife for the personal injury and suffering of the wife; and the case was left to the jury with the proper instructions on that point : 1 Oh. PI. 02, ed. of 1828. The case depends on the first point taken by the defendant on his motion for a nonsuit; and the question is, whether, the defendant being a remote vendor of the medicine, and there being no privity or connection between him and the plain- tiffs, the action can be maintained. If in labeling a poisonous drug with the name of a harmless medicine, for public market, no duty was violated by the defendant excepting riiAKMACAi. jrKisrRrni-.Nrr:. 215 that which he owed to Asspinwall, hi.s immediate vendee, in virtue of his contract of sale, this ac- tion cannot be maintained. If A. bnihl a waiiii who ]Hits it into the hands of a chihl, by whose indiscretion it is discharged, is liable for the daiiiai;<' (Mcasioncd bj the discharge; Dixon v. Bell, 5 Maul. cV: Sel. ]98, 1 Stark. 287, 17 K. U. 308. The defendant's contract of sale to Aspinwall does not excuse the wrong done to the plaintil¥. It was a part of the means by which the wrong was effected. The plaintiff's injury and their remedy would have stood on the same principle if the defendant had giyen the belladonna to Dr. Foord without price, or if he had put it in his shop without his knowledge, under circumstances which would i^robably haye led to its sale on the faith of the label. Peters v. Johnson, 41 8. E. 190, 50 W. Ya. 614, 57 L. R. A. 428, 88 Am. St. Rep. 909 and notes; McVeigh y. Oentry, 7(1 N. Y. Supp. 535, 72 App. Diy. 598. , In Longmeed y. Holliday, (I Eng. Law & Eq. 562, the distinction is recognized between an act of negligence imminently dangerous to the lives of others and one that is not so. In the former case, the party guilty of the negligence is liable to the party injured, whether there be a contract between them or not; in the latter, the negligent party is liable only to the party with Aylioni he contracted, and on the ground that negligence is a breach of the contract. The defendant, on the trial, insisted that As- piuAvall and Foord were guiKy of negligence in 220 LIARILITV OF MANUFACTURER. sellino- the article iu question for what it was represented to be in the hibel, and that the suit, if it could be sustained at all, should have beer brought against Foord. The judge charged the jury that if thev, or either of them, were guiltv of negligence in selling the belladonna for dan- delion, the verdict must be for the defendant ; and left the question of their negligence to the jury, who found on that point for the plaintiff. If the case really depended on the point thus raised, the question was properly left to the jury. But I think it did not. The defendant by affixing the label to the jar, represented its contents to be dandelion ; and to have been "prepared" by his agent, Gilbert. The word "pre])ared'' on the label must be understood to mean that the article was manufactured by him, or that it had passed through some process under his hands, which would give him personal knowledge of its true name and quality. Whether Foord was justified in selling the article upon the faith of the defend- ant's label would have been an open question in an action by the plaintiffs against him, and 1 wish to be understood as giving no opinion on that point. But it seems to me to be clear that the defendant cannot, in this case, set up as a de- fense that Foord sold the contents of the jar as and for what the defendant represented it to be. The label conveyed the idea distinctly to Foord that the contents of the jar was the extract of rHARMACAL JURISPRUDENCE. 221 dandelion: and tliat U\c dofendant knew it to be sucli. 80 far as the defendant is concerned, Foord was under no obligation to test the trnth of the representation. The charge of the judge in sub- mitting to the jury the question in relation to the negligence of Foord and Aspinwall cannot be complained of by the defendant. Gardiner, J., concurred in confirming the judg- ment, on the ground that selling the belladonna without a label indicating that it was a poison was declared a misdemeanor by statute: 2 R. S. 694, sec. 23; but expressed no opinion upon the question whether, independent of the statute, the defendant would have been liable to these plain- tiffs. Gridley, J., was not present when the cause was decided. All the other members of the court concurred in the opinion delivered by Chief Jus- tice Ruggles. Judgment affirmed. We find that in the foregoing case the princi- ples gx)verning agency are a significant feature. These principles apply in the case of a druggist or pharmacist and his c](Mk. 'IMic clerk is the agent of his employer, and while acting within the scope of his authority his acts will bind his employer. The employer is liable, civilly, for all damages resulting from the negligence or mis- 222 LIABir.ITY OF MANUFACTURER. takes of his clerk, while the clerk, himself, is lia- ble both civilly and criminally.^ 1 Norton v. Sewall, 106 Mass. 143, 8 Am. Rep. 298; McCubbin V. Hastings, 27 La. Ann. 715; Burgess v. Sims Drug Co., 114 Iowa 275, 89 Am. St. Rep. 359, 86 N. W. 307, 54 L. R. A. 364, Martin v. Temperley, 42 B. 298, 3 G. & D. 497, 12 L. J. 2 B. 129; 7 Jur. 150. PIIARMACAL JURISPRUDENCE. 223 CHAPTER XI EL Contributory Negligence. "■Coiitrihiitoi'Y uei>lii>euc('" has beoii dctined as "The absence of reasonable care and caution in a ji,iven case, on the part of a complainant."^ In another instance the court defined it as being ''Any want of ordinary care, even in a slight de- gree, which directly contributes to the injury."^ Again, it has been said judicially that "If the complainant's fault, whether of omission or com- mission, has been the proximate cause of his in- jury, he is without remedy against one also in the wrong. "^ When it appears from the evidence in a case that the plaintiff, himself, is the only one charge- able wi'th negligence, then, though the defend- ant's act may have been the immediate cause of the damage, of course there can be no recovery against the plaintiff. It is in those cases where the defendant, also, has been negligent, that the question arises as to whether the damage was caused solely by the negligence of the defendant, or, whether the plaintiff so far contributed to the injurious result, that l)ut for his negligent act or 1 Washington Etc. R. R. Co. v. Gladmon, 15 Wall. 401, 21 L. Ed. 114, 7 U. S. Notes 909. 2 Neanow v. Uttech, 46 Wis. .590, 1 N. W. 221. •3 Little V. Hackett, 116 U. S. 371, 6 .Sup. Ct. Rep. .391, 29 L. Ed. 652, 11 U. S. Notes 36. 224 CONTRIBUTORY NEGLIGENCE. omission it could not liave occnrred. If the evi- dence shows the former case to be true, the plain- tiff may recover, but if the latter case be proven he can recover nothing.^ In some of the States, the burden of proving contributory negligence on the part of the plain- tiff rests wholly upon the defendant, and he must establish this defense by a preponderance of evi- dence.^ In others, it is held that the plaintiff must not only show that the defendant was negli- gent, but must also prove that he, himself, "was in the exercise of due care with respect to the occurrence from which the injury arose.''^ It may easily occur in the experience of the pharmacist that, while chargeable with a mistake himself, he may be saved from a judgment for damages by proving contributory negligence on the part of the one complaining of injury. A typical example of contributory negligence aris- ing in connection with the practice of pharmacy is found in the case Gwynn v. Duffield, 61 Iowa, 64, 47 Am. Rep. 802, 1-5 N. W. 594. We will sub- mit the facts of the case with the reasoning of the court thereon, for the careful consideration of 1 Railroad Co. v. Jones, 95 U. S. 439, 24 L. Ed. 506, 9 U. S. Notes 279. 2 MacDougall v. Central R. R. Co., 63 Cal. 431, 4 Cal. Notes 99; Hocum v. Weitherick, 22 Minn. 152; Mallory v. Griffey, 85 Pa. St. 275. 3 Fox V. Glastenbury, 29 Conn. 204; Chicago Etc. R. R. Co. V. Freeman, 6 111. App. 608; Hinckley v. Cape Cod R. R. Co., 120 Mass. 257; Ronker v. St. John, 21 Ohio Cir. Ct. Rep. 39. PHARMACAI. JTRISPRUDENCE. 225 tlie roadev. The rei)oi't of tlio case represents that "The defeiidants are aixtthecaries enjiaued in business as apothecaries. Tlie phiintilT brinjis this action to recover of them |5000.00, as dam- ages alleged to have been sustained by reason of their negligence as apothecaries. They pleaded a general denial. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendants appeal." The following opinion in this case was ren- dered by Adams, Judge : "The injury was caused by reason of the plaintitf' s taking an overdose of belladonna. He went into the defendants' drug store and helped himself to what he supposed was a dose of the extract of dandelion ; unfortunately the jar from which he helped himself contained belladonna, and what he took was an overdose of that drug. He avers that the defendants sold him the dose in question for the extract of dan- delion, and also thafhe took it under their direc- tion, and under their representation that it was the extract of dandelion. He introduced very little evidence, if any, tend- ing to show that the defendants sold him the dose. But he showed circumstances from which the jury was justified, if they believed the evidence, in finding that the defendants consented to his having the dose as a gift. In addition to tliis he showed l)eyon(l controversy that the defendants were guilty of negligence. He showed also, that 22G COXTRIBUTORV XEGLIGENCE. belladonna is a poison, and that injury resulted to him from taking it. Now the law is clear that where a person, whether an apothecary or not, negligentl}' gives another person poison, for the pui"[30se of being- swallowed by him, and the poison is swallowed by him and produces injury, the person negligently giying the poison is guilty of tort, and is liable for the injury, unless the injured person was also guilty of negligence which contributed to the in- jury. The principal question presented, and the only one which we deem it necessary specifically to determine, is one which arises upon an in- struction giyen by the court on the subject of contributory negligence. The court giyes the general rule in respect to the effect of contrib- utory negligence on the part of theperson injured, and so far there is no complaint by either party. But the court went further, and gaye an excep- tion to the rule, which may properly enough be giyen in some cases, but for which the defendants contended that there is in this case no warrant in the eyidence. The exception giyen, stated in a general way, is the familiar one, that a plaintiff in an action for tort may recoyer, notwithstand- ing that his own negligence contributed to the injury, if the defendants, after seeing the danger of injury, did not use ordinary care to ayoid it. Morris y. Chicago, &c. 11. R. Co., 45 Iowa, 29; Weymire y. Wolfe, 52 Iowa, 533, 3 N. W. 541. PHAKMACAL j U KlSl'RU DENCK. Hi 111 (Iclci'iniiiiiiii- wlictlicr the court erred in giving- the instruction, we sliall have occasion to notice the peculiar hinjiuage used, and shall also have occasion to refer to the undisput(>d facts toucli- ino- the question of neoligeuce. The court in- structed the jury that, if they found that the in- juries coinplained of werc^ (-ontribuied to by the jtlaintiff, he could not recover, unless it was lurther shown by him that his fault, or neglect, or carelessness, or wrong, was known to the de- fendants, and that the defendants could have ])revented the injuries complained of by the exer- cise of reasonable care, after those facts had be- come known. The language used, it will be seen, is not clear. That the court intended to give the ordinary rule, as stated in the cases above cited, there is no doubt. But the use of the word 'wrong,' in the connection in which it was used, leads us to suspect that the court intended to add something to the ordinary rule. The idea to be expressed was the plaintiff's danger, or, what is the same thing under the circumstances, the ])laintiff's iicf/lif/cucc producing danger. If the court intended nothing more than that, the words 'fault or neglect or carelessness or wrong,' were not ha]ipily chosen. We have to say, therefore, that it rather appears to us that, in the use of the word 'wrong,' the court had in mind something that might lie expressed by the word Ircsjiass. or possildy by the word Ihcfl. Tf so, then the court 228 CONTRIBUTORY NEGLIGENCE. iiiteiKUnl to iustruct the jury that if the pla.in- tilT was guilty of trespass or theft, aud such tres- pass or theft became known to the defendants, and they did not, after such knowledge, use ordi- nary care to prevent the injury, they would be liable notwithstanding the plaintiff's negligence. But it will be seen at once that they might have discovered the plaintiff's wrong of that kind, without discovering that he was in any danger; and unless they discovered his danger, there is no ground for the exception to the rule in respect to the effect of the plaintiff's contributory negli- gence. But in no view can the instruction be sustained. The plaintiff predicated his right to recover upon the theory that he took the drug with the defend- ants' consent, and by that he must stand or fall. Proceeding, then, upon that theory, let us in- quire what are the undisputed facts respecting the subject of negligence. Taking the evidence of consent, as showing what the plaintiff claims that it does, the facts are as follows : The y)lain- tiff went to the jar of belladonna, and took out on the point of his knife what lie tlumght was a dose of the extract of dandelion, and called the attention of one of the defendants to it, and asked if that was a proper dose, and thereupon the plaintiff took it. The jar, it appears, was properly labeled, and the plaintiff's negligence, if any, consisted in not discovering that the jar PHARMACAL JURISPRUDENCE. 229 coiitaiiKMl iH'lladcHiiin. Tlicio is no pivtonse that he could not read. The only excuse for him was, so far as we can discover, thai the defendant, wliom he consnKed in regard lo the size of the dose, had just made the same mistake. He had just taken from that jar, as the plaintitf had seen, a portion of its contents, to till an order for the extract of dandelion, j»iven by the plaintiff, and was doing up the package when the plaintitf pro- ceeded to help himself from the jar as above set forth. There is not the slightest evidence that the defendant discovered the plaintiff's danger. The jury, then, should have been instructed, with- out qualification, that, if the plaintiff was guilty of negligence contributing to the injury, he can- not recover." "Reversed." One of the judges filed a diss(Miting oi)inion in this case. He argued, first, that ''the defeuihints were bound to know the contents of the jar, and its nature and character; the plaintiff, in the exercise of the highest care, was justified in rely- ing upon defendants' knowledge of the contents of the jar, and upon their act, in taking a jiart of it, as a representation that it was the medicine lie ordered." He maintains that, under the con- ditions stated, the plaintiff was not chargeable ^^'ith contributory negligence. In his second argument, this judge holds that, conceding that the plaintiff was negligent, the liability for the injury would still rest upon the defendants. 230 CONTRIBUTORY NEGLIGENCE. If the plaintiff's act in helping himself to the l»«'lla(lonna had l)een in tlie usual course of busi- ness, that is, if that had l^een tlie usual way of dispensing drugs; or, if it had appeared from the eAddence that the defendants actually saw the danger of injury and did not use ordinary care to prevent it, the opinion of the dissenting judge Avould seem to be right; but, as the case stands, we think tliat the judgment of the court is sound. PHARMACAL JURISPRUDENCE. 231 CHAPTER XIV. Special Features, Civil and Ckiminal. The liability of the pharmacist is dual in its nature, and he may be subjected to both a civil action and a criminal prosecution for the same act. For instance, in compound in*;- a ju'cscrip- tion, if he uses a poisoncms drui;- in place of an innocent one prescribed by tlie physician, as bel- ladonna instead of the extract of dandelion, and the death of the patient is caused thereby, two separate actions may be commenced against him. He may be sued civilly to recover damages, and at the same time prosecuted criminally on a charge of manslaughter.^ A judgment recovered against him on the civil suit will not interfere with his conviction for the crime. Thus, for the one act, he may be deprived of both his property and his liberty. Moreover, if he is practicing without a license, he is guilty of a misdemeanor under our statutes and is liable to a criminal prosecution for each act of that kiud.^ The pharmacist is not to be held responsible for any unintentional, consequential injury that nmy result from his lawful act where it does not appear that he is cliargeable Avitli negligence or folly. In a New York case, Allen, a passenger, 1 Tessymond's Case, 1 Lewin's Crown Cas. 109. 2 People V. Rontey, 21 N. Y. St. R. 174, 4 N. V. Supp. 2.35. 117N. Y. 624, 22N. E. 112.S. 232 SPECIAL FEATURES. undertook to recover damages from a steamship company, for a mistake in fillino a prescription on board one of its ships during a voyage. lie was given calomel instead of quinine, but no actual negligence Avas shown. The court held that "a person is not legally responsible for any unintentional injury from a lawful act when the failure to exercise due care cannot be imputed to him. And the burden of proving such lack of care, where the act is lawful, is upon the plain- tiff."! Our statutes require the pharmacist to label the poisons which he sells, and a failure to do so is made a misdemeanor, punishable by fine, etc. This is simply his punishment for the crime of violating the law, regardless of whether or not any injury results from his negligence. Where injury does result, he is liable to a civil suit for damages; and, in case of death, he may be sub- jected to a second criminal prosecution on a charge of manslaughter. If, liowever, it appears that he fully and fairly warned the purchaser as to the dangerous character of the drug, and no negligence is proven, then he would be relieved from responsibility as to resulting injury. An action was commenced by Mary Wohlfart against Charles A. Reckert, a diiiggist, to recover damages for death caused by alleged negligence. 1 Allen V. State S. S. Co., 1.32 N. Y. 95; Losee v. Buchanan, 51 N. Y. 476, 10 Am. Rep. 623; Carpenter v. Blake, 75 N. Y. 12; Morris v. Piatt, 32 Conn. 75; Simonds v. Henry, 39 Me. 15»i. rilARMACAL JURISPRUDENCE. 233 It seems that lieckert's clerk had sold (he plain- tiff's deceased husband a poison without affixing tliereto the label reqnireil by statute. The evi- dence showed that the clerk had informed the man that the "black drops" for which he asked was a stron^- poison, and that he should take only ten or twelve drops for a dose. It appears, however, that the deceased had taken many times the amount named by the clerk, havinjn' been in- formed by a friend that he had taken half a glass of "black draught'' and was cured by it. The absence of the label was admitted. The court held that though selling the poison without a label was a misdemeanor, yet the fact that the clerk had fully and fairly warned the purchaser of the dangerous character of the drug relieved the defendant from liability in a civil action.^ The i)hariiiacist sometimes tinds himself in the endiarrassing position of being recpiired to till a prescription which he knows contains an over- dose of some poisonous drug. His professional knowledge convinces him that the preparation will be dangerous, and, perhai)s, even deadly. His first duty in such a situation is to call the atten- tion of the prescril>ing physician to the fact of the erroi-, if possible, and give him an ()]»])(»rtunity to correct it. Tf it is im])()ssil»le to communicate witli tlie ]>hysician, or if I he laMci- rcCnscs to niod- 1 Wohltahrt v. Beckert, 12 Abb. \. C. 478. 234 SPECIAL FEATURES. ifv the formula and insists npon its beinji" coni- ixmnded as it stands, the pharmacist mnst de- cline to do it ; for if he dispenses the drn In a Georgia case the conrt decided that where, in good faith, a druggist recommends a prescription as that of another named person, and fills the same in compliance with the request of his customer, charging only for the medicines and his services in compounding them, he is not liable for any damage which may result from the use of the remedy. Tn this case it was held, also, that to fill a prescription is "to furnish, prepare and combine the requisite materials in due pro- portion as prescribed," and that the term "pre- scription" is broad enough to include a recipe or formula for the treatment of horses, whether it is furnished by a physician or by some other per- son.^ The courts of each State interpret its statutes, and determine what things may or may not be sold by one who is not a licensed pharmacist. In an Illinois case it was decided that the term "usual remedies," as employed in the statute, did not include quinine." In a Minnesota case it was held that the sale of borax was not prohibited.^ In Brown v. Marshall, 47 IMich., 576, 41 Am. Rep. 728, 11 N. W. 392, the court holds that 1 Davidson v. Nichols, 11 Allen (Mass.), 514. 2 Ray V. Burbank, 01 Ga. 505, 34 Am. Rep. lO.S. 3 Cook V. People, 125 111. 278, 17 N. E. 849. 4 State V. Donaldson, 41 Minn. 74, 42 N. VV. 781. 236 SPECIAL FEATURES. where a drugjj;ist lias iucorreetly tilled a prescrip- tion he is not permitted to offer as a defense the fact that the case itself was negligently treated. An action was prosecuted by Julia Norton, ad- ministratrix, against David J. Sewell, an apoth- ecary, to recover damages for causing the death of the plaintiff's husband. The question of privity of contract and the survival of the right of action are considered in this case. "At the trial in the superior court, before Eeed, J., the evidence tended to show that Thomas Norton was in the employment of Patten, and on Aug. 19th, 18G9, was sick with a cold at Pat- ten's shop ; that Patten told him to go home and said that he would get some medicine and come to his house in the evening and doctor him ; that Patten in the evening of that day went to the shop of defendant, who Avas an apothecary, and asked for two ounces of rhubarb, and an attend- ant there gave him, by mistake, laudanum in- stead of rhubarb ; that he procured the medicine to administer to Norton ; and that he proceeded with it to Norton's house and there administered about an ounce of the laudanum to him, from the effects of which he died in five or six hours. The defendant asked for a ruling 'this was a right of acticm which did not survive to an ad- ministrator.' But the judge declined so to rule; and also refused a recpiest of the defendant for a ruling 'that there was no privity of contract be- PHARMACAL JURISPRUDENCE. 237 tween the defendant and the deceased, and there- fore the action could not be maintained.' The jury found for (he plaintiff, with daniajies in the sum of 1450.00; and the defendant allej^ed excep- tions." On appeal, Justice Gray delivered the follow- ing opinion : "Upon the allegations in the dec- laration, and the statements in the bill of excep- tions, the jury must be taken to have found that the defendant, an apothecary, by his sei-vant, neg- ligently sold, as and for tincture of rhubarb (a well known and harmless medicine) two ounces of laudanum, a dangerous and deadly poison, to Patten, who procured it for the purpose of ad- ministering it, and did administer one ounce of it, as a medicine, to his servant, the plaintiff's intestate, from the effects of which he died. This finding includes a violation of duty on the part of the defendant, and an injury resulting therefrom to the intestate, for which the defendant Avas re- sponsible, without regard to the question of pri- vitj^ of contract between them. The case is with- in that of Thonms v. Winchester, 2 Selden, G N. Y., 397, 57 Am. Dec. 455 and Notes, which has often been recognized and approved by this court. Davidson v. Nichols, 11 Allen, 514, 519. Mc- Donald V. Snelling, 14 Allen, 290, 295, 92 Am. Dec. 768 and Notes. Wellington v. Downer 238 SPECIAL FEATURES, "By the statutes of the Commonwealth, 'ac- tions of tort for assault, battery, imprisonment, or other damage to the person,' survive and may be prosecuted by the executor or administrator of the party injured. Gen. Sts., C. 127, I ; C. 128, 1. The words 'damage to the person,' as here used, do not, indeed, extend to torts not directly affecting the person, but only the feelings or rep- utation, such as breach of promise, slander, or malicious prosecution. Smith v. Sherman, 4 Cush., 408; Nettleton v. Dinehart, 5 Gush., 543. But they do include every action, the substantial cause of which is a bodily injury, or, in the words of Chief Justice Shaw in 4 Gush., 413, 'damage of a physical character,' etc." The Penal Code of each state should be con- sulted for special statutory provisions bearing upon the criminal liability of the pharmacist. Careful attention should be given to the sections dealing with the administering of drugs or the using of instruments to produce miscarriage; the administering of any poison or other destructive or noxious thing, so as to endanger life; the ad- ministering of drugs or medicines to make possi- ble the commission of any crime ; the administer- ing of poisoned drugs, wrongly and with injurious effect, by a physician while intoxicated ; the man- ufacturing or selling of drugs or instruments for unlawful purposes; also, the section declaring who is a principal in the commission of. a crime. PHARMACAL JURISPRUDENCE. 239 CHAPTER XV. Important Business Features. The legal status of the plivsiciau's prescription:, as to its ownership, has not yet been settled by the courts in this country. The legal rights of the physician himself in his own prescription, in the absence of statutory provisions, are, doubt- less, those of the author of any writing under the principles of common law copyright.^ Under the common law the author is protected in his exclusive right to first print and publish his writings; and he may set in motion the power of the courts, by means of injunction, to restrain another from publishing them without his con- sent. With regard to his prescription, the physician occupies the place of author, and undoubtedly should be protected from any unwarranted use or publication of his work by another. The pub- lication of recipes for medicines and secrets for the compounding of medicines has been en- joined.^ This principle has been maintained with regard to letters, lectures, etc." It has also been applied 1 Donaldson v. Beckett, 4 Burr 2408; Wheaton v. Peters, 8 Pet. 591, 8 L. Ed. 1055, 3 U. S. Notes 482; French v. Maguire, 55 How. Pr. 471; Grigsby v. Breckenridge, 2 Bush 480, 92 Am. Dec. 509; Bullinger v. Mackey, 15 Blatchf. .550, Fed. Cas. No. 2127. 2 Yovatt V. Winvard, I. J. & W. 394; Morison v. Moat, 9 Hare 241. 3 Abernethy v. Hutchinson, 3 L. J., Ch. 209, 1 H. & T. 28; Gee V. Pritchard, 2 Swans 402, 19 R. R. 487. 240 IMPORTANT BUSINESsHfEATURES. to commimications between professional men and their patrons; and, in general, the right of a man to keep or publish his own ideas has been strong!}" maintained by the courts.^ When an author publishes his writings, he is held to hereby relinquish his private or exclusive rights therein and they become public property. His onl}^ way to secure to himself the continued, exclusive control of liis writings, after publica- tion, is to avail himself, before publication, of the statutory provisions framed to that end. Of course the physician does not ordinarily se- cure a statutory copyright on his prescriptions. Such a course would be impracticable. He must look for protection to the common law principles just referred to. The fact that a prescription has been furnished to a patient is not such a publication of it as will serve to deprive a physician of his rights therein. Prescribing for a patient is not a general publica- tion of the formula used ; it is furnished to the patient for a specific use or purpose, undoubtedly limited, the nature of which is understood, pre- sumably, by both him who furnishes it and him who receives it. This view of the subject seems reasonable, and it is in accordance with the judi- cial rulings in cases most nearly allied to that under consideration. Proceeding on academic lines, in the absence of decisions, it seems fair to 1 Mills V. Taylor, 4 Burr 2362. PHARMACAl. JURISPKUDEN'CE. 241 hold that the patient buys only this specific nse of the remedy, and that his rights in the fornmla employed are limited to that use. He owns the paper on which the formula is written, but does not own the idea embraced in the writing and the author of it may forbid its refilling. The physi- cian still owns the exclusive right to sell the pre- scription to other patients; as, under copyright by statute, the buyer of a book owns the individ- ual copy purchased by him, while the author still owns the ideas or thought as expressed in the book, with the exclusive right to sell other copies. The protection of this principle would not ex- tend to formulae or remedies that have been al- ready published. They belong to the public, and the use of such by a physician in his prescription does not serve to give to him any exclusive right therein. Having once been filled the life of the ])r('scri|»- tion is ended. It is functus officio. Its chief importance beyond this point is in its use as evi- dence of its own nature, in case mistake be charged against either physician or pharmacist. For this reason it is made the pharmacist's duty, by statute, to file and preserve the prescription for a certain number of years. The "patent medicine" feature of the pharma- cist's business has assumed considerable commer- cial importance in this age. So inviting and al- most limitless is the field for proprietary medi- 242 IMPORTANT BUSINESS FEATURES. cines that nearly every dealer in drugs is tempt- ed, at some time, to experiment along; that line on his own account. His exclusive right to man- ufacture and sell his particular compound is pro- tected by registering the trade-mark. This is a protection afforded by the State government. If the article for which protection is desired is to be used in commerce with foreig-n nations, the several States of the Union, or the Indian tribes, the trade-mark may be registered in the Patent- ofifice of the United States, and thus federal pro- tection is secured.^ Trade-mark is defined as "A mark by which one's wares are known in trade.'-^ "A word, mark, or device adopted by a manufacturer or vendor to distinguish his production from other productions of the same article."^ A trade-mark may consist of figures, letters or words arbitrarily chosen, or of some peculiar de- vice; or, it may be formed by some peculiar ar- rangement of figures, letters or words, etc. "But letters or figures, which indicate quality merely, and Avhich cannot indicate, by their own meaning or by association, origin or ownership, may not be appropriated."* It was held that the term 1 Trade-mark Cases, 100 U. S. 82, 92, 99; 25 L. Ed. 550, 9 U. S. Notes 792 (1879). 2 Shaw Stocking Co. \-. Mack, 12 Fed. 710, 21 Blatchf. 1 (1882); Humphrey's Specific Homeopathic Medicine Co. v. Wenz, 14 Fed. 252; Adams v. Heisel, 31 Fed. 280. 3 Hostetter v. Fries, 17 Fed. R. 622, 21 Blatchf. 339 (1883). 4 Anderson's Dictionary of Law, page 1074. PHARMACAI. JURISPRUDENCE. 243 "syrup of figs" could not be protected as a trade- mark. It expresses only the natural (luality or character of the syrup, and any one must be per- mitted to make syrup from figs. To meet this objection the proprietors testified that it was an arbitrary use of the term, and that their com- pound did not, in fact, contain any product of figs whatever. From this evidence the court held that it was in the nature of a fraud upon the public, and for that reason this name could not be protected as a trade-mark.^ The druggist and, indeed, every other citizen should be acquainted with a few of the simple legial rules that are of daily application in his business. While it would be foolish and in the end expensive for him to attempt to be his own lawyer, yet there are matters familiar and of daily occurrence, the legal aspects of which he must understand, or be exposed to frequent losses before he is -aware that he needs a lawyer. It is so unsatisfactory in a business transaction to find that one has sought legal advice a little too late to be benefited thereby. One matter of prime importance to every busi- ness man who extends credit, is the preservation of his accounts from being barred by the statute of limitations; or, in familiar language, from be- coming "outlawed." The different States, re- spectively, have their statutory limitations of 1 California Fig Syrup Co. v. Frederick Stearns & Co., 73 Fed. Rep. 812, 43 U. S. App. 234, 20 C. C. A. 56. 244 IMPORTANT BUSINESS FEATURES. time within which certain actions must be com- menced. These are wise provisions against the raking up of old claims after, perhaps, important witnesses for the defense are dead and documeu- tary and other evidence lost and destroyed. They serve as a stimulus to every dealer to keep his affairs well in hand and up to date; and upon engaging in business he must not fail to inform himself as to the rules adopted by his own State relating to this important subject. Thus forti- fied he is prepared to protect his accounts. For instance, in the State of California, "An action upon a contract, obligation, or liability, not founded upon an instrument of writing, or found- ed upon an instrument of writing executed out of the State," must be commenced within two 3'ears from the date upon which it was made or arose. Also, "An action upon any contract, ob- ligation, or liability, founded upon an instru- ment in w^'iting executed in this State" must be commenced within four years. In an ordinary, personal account for goods sold, each item charged has a life of two years from its date of sale; but in the case of a "mutual, open and cur- rent account where there have been reciprocal de- mands between the parties, the cause of action is deemed to have accrued from the time of the last item proven in the account on either side." Tlie balance owing on such an account will have a life of two years from the sale of the last item, and suit must be commenced within that time. PHARMACAI. Jl'RISI'RUnENCE. 245 111 the rase of a proiiiissory note, wliicli is an "instninient in writino," the complaint innst be filed within four years from the day upon which the note is payable or niatnre. That is, if a note is made pa^^able one year after date, then suit must be commenced within five years from date. In the process of protecting an acconnt in Cal- ifornia nntil a time when a debtor may be able or be compelled to pay it, before the expiration of two years a note should be secured; this pre- serves it for at least four years louiier, then, un- less a new note be given, suit must be commenced, after which another year or more may elapse dur- ing the pendency- of the action before judgment; the judg-ment is effective for five years and at the end of that time may be renewed. Many losses have occurred througii ignorance of the fact that a promise to answer for the "debt, default, or miscarriage of another" must be in writing. It is not unusual for a man of financial responsibility to verbally endorse the credit of another, and say that he will stand good for any account which that other may run. It is easy and graceful, but it is wholly ineffectual, from a legal point of view, so far as concerns the protection of the creditor. Such a guaranty cannot be en- forced ; and even if the guarantor, with a fitting sense of honor, would desire to pay the claim, should he chance to Ix' insolvent his other and legal creditors would object. 246 IMPORTANT BUSINESS FEATURES. lu such a case, in order to be secure, the dealer may refuse to extend the credit asked for, may demand a written promise from the would-be l>uarantor, or may agree to charge the goods thus sold, to the account of the guarantor, himself. If the latter course be agreed to, he must not open an account with the person for whose benefit the goods are furnished, nor may he ever make a de- mand upon him for payment; he must be consist- ent in his contention that he relied wholly upon the guarantor, otherwise the latter will be held free from all legal obligation to pay the claim. Some of the other important cases in which contracts are invalid at law, unless there be some memorandum of them in writing signed by the party to be charged, are mentioned in Chapter VIII of this book, under the title "Explanatory of Contracts ;'' but the scope of this work does not require their discussion in detail. PHARMACAL JURISPRUDENCE. 247 CHAPTER XVI. Insurance on Drugs. The almost desperate means sometimes re- sorted to by insurance companies, in their efforts to avoid liability under their contracts, have been fully equaled, if not surpassed, by the efforts of parties insured to enforce unjust claims against them. These contests have, in many cases, de- veloped conditions and legal questions in the last degree complex and vexatious. The question as to what extent or under what conditions the keeping of an article by the party insured, expressly prohibited by the terms of the policy, will invalidate such policy and prevent a recovery in case of loss is one of considerable importance to druggists. An action was brought in the Halifax, N. O. Superior Court to recover under a fire insurance policy issued by the defendant company, on plaintiff's stock of drugs and medicines, which was afterwards destroyed by fire. The judgment was in favor of the plaintiff, and the defendant appealed therefrom. In the opinion in this case, affirming the judg- ment of the lower court, the Appellate Court said : "It appears that while the plaintiff's principal business was that of a druggist, yet, as is com- mon with druggists in small towns, he kept vari- ous other articles. Nearly one half of his stock 248 INSURANCE ON DRUGS. was other than drnj^s and medicines strictly speaking-, but in common parlance it would be called a stock of drugs and medicines. After the fire this seems to have been the first trouble — the plaintiff supposing that his stock in the store was insured, while the defendants insisted that only the 'drugs and medicines' were insured. And such is the language of the policy. "What then are 'drugs and medicines?' This is not easily answered. Webster defines drugs to be 'substances used in the composition of med- icines;' and again, 'used in dyeing or chemical operations.' "It is clear that the defendant in the careful preparation of the policy ought not to have left a matter of that sort at large as a trap in which the plaintiff might be caught. This matter is, however, brought forward for the following spe- cific purposes : 1. The policy, even by the de- fendant's admission, does insure the plaintiff's 'stock of drugs and medicines in the house,' &c. Well, is saltpeter a drug? Yes, it is admitted to l)e. Was it a part of the stock as a drug? Yes, admitted to have been. Then it was specifically insured in the written and governing part of the policy. But in the i^malJ print of the policy it is provided that if the 'assured shall keep gun powder, fireworks, nitroglycerine, phosphorous, saltpetre, &c., the policy shall be void.' PHARMACAL JURISPRUDENCE. 249 "Now the above arlicles are not necessarily drugs and medicines. The ]n*ohibition therefore is not against keeping Uiem as dnigs and medi- cines where a pound of saltpetre would be as harmless as a pound of alum, but against keep- ing them as articles of danger. \\\ih this con- struction the policy conlraci is just and reason- able; otherwise the policy insures saltpetre, and yet forbids the keeping of it. There is no allega- tion that it was kept otherwise than as a drug, and no objection is made to the quantity, and no pretense that any harm resulted from it. If the president of the defendant company had written after the fire as lie did beforcN that his company would not insist upon technicalities or take ad- vantage of inadvertences where no harm had re- sulted, it would have been doing gracefully what the courts will compel to be done, whether or no, A substantial compliance with a contract is all that is required in any case. Where there has been a substantial compliance and good faith, technicalities will be disregarded by the courts. The saltpetre which was in stock as a drug, kept and sold as a drug, w as insured ; it was forbidden to be kept or used otherwise than as a drug, and in such manner, or quantity, or for such purpose as would increase the risk. "Wood on Insurance, page 840, is express au- thority for what I have said. 'Where a policy is issued u])OH a slock of goods, such as are usuallv 250 INSURANCE ON DRUGS. kept in a country store, it is held that all such lioods as usually form a part of such a stock niav be kept, although prohibited to be kept by the printed terms of the policy'. ***** And Ayhen a policy coyers a stock of merchandise wliicli is in fact kept in a country store, although the words, .snclt f/.s- arc uxikiIIi/ kept in a count rj/ store, are not used, the policy will not be inval- idated by the keeping of articles embraced under the list of hazards, if the articles so kept are usually kept in such a store, although in the printed proyisions of such policy, the keeping of such articles is specially prohibited.' ''In our case saltpetre was on hand as a part of the stock of drags at the time the policy issued ; it is usually kept in drug stores, and it was al- ways kept on hand in small quantities for retail as a drug; the stock of drugs was insured; and although it was specially prohibited in the printed terms, it does not avoid the policy ac- cording to authority just quoted, for which he cites a number of cases. * * *"^ It appears from this case that when a policy is drawn to cover a "stock of drugs and medicines in the house, &c.,'" whatever is properly included within the limits of that description, so written in, is covered by the policy; notwithstanding the fact that the given article is included in a list, set out in the printed part of the policy, speci- 1 Collins V. Farmville Insurance and Banking Co., 79 N. C. 279, 28 Am. Rep. 322. PHARMACAL JURISPRUDENCE. 251 fj'iug things which luiist not be kept by the in- siuvd, under a condition that a violation of that provision shall render the policy void. In such cases not only is the given article, if kept and used only as a drug, covered by the policy, but it is held, also, that the keeping of that article merely as a drug and not in quanti- ties suflBcient to increase the risk shall not operate to render the policy void. This con- clusion is based on the principle that the written part of the policy expressing most directly the intention of the contracting parties, must con- trol the printed part of the document. Saltpetre was admitted to be a drug and all drugs con- tained in the house were clearly included in the description of the property to be insured. Such questions should be avoided as far as possible by a more specific description, in the policy, of the property to be insured. It may be well tx> state here that it is a vital principle in insurance law that the party seeking insurance shall act in the utmost good faith, and shall conceal nothing from the insurer that would tend to increase the risk assumed. In the foregoing case it appears that the policy was drawn to cover only the driif/.s and medi- cines contained in the building, when nearly one- half of the stock of goods consisted of articles not included within those terms. This fact oc- casioned a serious loss to the plaintiff druggist. 252 INSURANCE ON DRUGS. and it is a point of some interest to owners of drug stores desiring to effect safe insurance on an entire stock of goods. The case of Carrigan v. Lycoming Fire Ins. Co., 53 ^^rmont, page 418, 38 Am. Rep. 687, throws some light upon the force to be given to terms used in the policy in describing the goods intended to be insured. In this case the policy was written for |1200.00 covering, as written in, "stock in trade, consist- ing principally of groceries, provisions, drugs and medicines, fancy goods, and such other mer- chandise as is usually kept in a country store, including wines and liquors, * * * if the as- sured shall keep gunpowder, * * * benzine, benzole, etc., * * * without written permis- sion in this policy, then, and in every such case, this policy shall be void." The stock of goods was burned and the in- sured sued the company for the amount of the policy. Judgment was rendered in favor of the defendant and the case was appealed. In rendering its judgment the Appellate Court said: "The defense claimed that the contract, and the claim under it, embraced liquors kept for sale contrary to law, and the fixtures used in such illegal traffic, which was carried on by the plaintiff; and that by reason of such illegality the policy was null and void. "We think that a contract directlv insurino; PHARMACAL JURISPRUDENCE. 253 liquors intoiuled for illegal sale iu violatiou of the law of the State is invalid. Such contracts are made in order to afford the assured protec- tion in his illegal acts. Shaw, Ch. J., says: 'Where the direct purpose of a contract is to af- fect, advance or encourage acts in violation of law, it is void. But if the contract sought to be enforced is collateral and independent, though in some measure connected with acts done in violation of law, the contract is not void.' Board- man V. Merrimack Mutual Ins. Co., 8 Cush. 583. This principle has been applied to contracts of insurance against tire, by the courts of Massa- chusetts, in several recent cases. In Kelly v. Home Ins. Co., 97 Mass., 288, the policy was solely upon liquors and the casks containing them; and in Johnson and another v. Union M. & F. Ins. Co., and Lawrence v. National Fire Ins. Co., 127 Mass., 555, and notes on page 557, upon billiard and drinking saloons, unlicensed, kept in violation of law. At the time the policies in these cases were issued, it must have been ap- parent to the insurers that the object of the con- tracts was illegal, unless the insured were duly licensed; and the cases do not show that any in- formation upon that subject was sought for; and the insured would have had no cause for com- plaint, in case of loss, if the defendants insisted upon the illegal nature of the business as a de- fense. 254 INSURANCE ON DRUGS. "The same subject has beeu uuder considera- tion in Michigan; and the Supreme Court of that State, in a case almost identical with this, held that the policy was valid, stating, that, to make the case analogous to those involving ma- rine policies on unlawful voyages, and lottery insurances which have been uniformly held null, would require the policy to be in express terms insuring the party selling liquors against loss bv fire or forfeiture." PHARMACAL JURISPRUDENCE. 255 CHAPTER XVII. . The Pharmacist in Court. However averse the pharinacist may be to lit- i<>ation, it is necessary, sometimes, for him to ap- pear in court. It may be as plaintiff or defen- dant, or as an ordinary witness, an expert wit- ness, or a juror. If he appears in the capacity of plaintiff or defendant, he will probably have his attorney with him, and will act under his advice. If the pharmacist be subpoenaed as an ordi- nary witness, he must obey the subpoena, though in a civil suit he may demand the fees to which he is entitled for travel to and from the place designated, and also for one day's attendance while there. As an ordinary witness he is ex- pected and permitted to testify only to such facts as are within his personal knowledge. In the case of expert testimony, the conditions are different. In the determination of questions connected with any science, art or trade, or any department of learning or industry, requiring special training or scientific knowledge, the wit- ness is not restricted to the statement of facts, but may express his opinion. Indeed, in many cases it is his opinion only that is wanted ; and he may give it upon a case hypothetically stated, or upon a case in which the facts have been estab- lished. 256 THE PHARMACIST IN COURT. Before a witness is .perinitted to give expert testimony, he must be examined as to his qualifi- cations to give an opinion on the point in issue. To this end he may be subjected to a close exam- ination and cross-examination; and it is for the court to decide as to his fitness to testify in the matter. The expert witness is entitled to remuneration for his opinion, and the weight of authority is that he cannot be compelled to give his profes- sional opinion without compensation. However, it is customary and proper for the witness, before the trial, to stipulate for a fair compensation with the party desiring his services. Unless specially exempt by the statutes of his State, the pharmacist, like any other citizen, is liable to serve as a juror. INDEX. THESIS ON THE LAW IN GENERAL. PAGE The Beginnings of Law 11 American System of Jurisprudence 13 Constitution of the United States 14-16 Federal Law 14-16 State Law 17-22 Supreme Law 14-16 Growth and Uniformity of Laws 11-13 Comity of Nations 58 Comity Between States 17 Common Law 22-38 Conflict in Supreme Law 16 Roman Civil Law 38-44 International Law 57-60 Private International Law 60 Feudal System 32-38 Equity 44-57 PHARMACAL JURISPRUDENCE. Apothecary Name and Origin of< 81-82 Allegation of Fault Form of. 201-202 Boards of Pharmacy Appointment of. 131 Powers of. 131-160 Business Features As to Preservation of Accounts 243-244 As to Commencement of Actions 244-245 As to Guaranty of Account 245-246 As to Contracts That Must Be in Writing 167-168 Constitutional Status of Acts Regulating Pharmacy Considering Origin of United States Government.. 136-138 Legal Capacity of State 186 258 INDEX. PAGE Absolute Power of People 136 Powers of Federal Government 137 Powers of State Government 137 Nature of Constitution of the United States 138 Powers Withheld by People 138 Presumption in Favor of State Laws 139 Kinds of Unconstitutional Laws 140 Statement of Supreme Law 140 Law Under State Constitution 142 Nature of Laws Regulating Pharmacy 142-143 Limits of Police Power of State 143-144 When State Law is Constitutional 144 Law Requiring License to Practice Profession 144 Laws Must Be General in Operation 146 Power of Legislature to Prescribe Conditions 147-148 Status of Exceptions to Laws 148-149 Laws to Protect Life and Health 149-150 Contributory Negligence Definition of 223 Effect Upon Cause of Action 223-224 Burden of Proving 224 Of One Helping Himself from Druggist's Jar 225-230 Certificate and Notice of Death Legal Force of in Action Against Pharmacist 203 Care Meaning of "Ordinary" 192-193 Court Pharmacist in 255-256 Contracts of Druggist and Pharmacist Explanatory of Contracts 164-168 Contracts Implied by Law 165-166 Certain Contracts Must Be in Writing 167-168 Grocer's Contract of Warranty 170, 189,193 Sale of Goods on Inspection 170-172 Druggist's Contract of Warranty 172-174 Pharmacist's Contract of Warranty 174-175 Definitions of Law^ Law 63 Municipal Law 64 INDEX. 259 PAGE Common Law 65-66 Civil Law 67-68 Criminal Law 68 Foreign Law 70 International Law 70 Private International Law 70 Organic Law 69-70 Statute Law 68-69 Drugs Liability of Dealer in 115, 176-196 Adulteration of. 131 May Be Sold by Whom 130 Druggist Liability for Negligence 176-196 Not an Insurer 193-194 Caveat Venditor 189 Damages Amount Fixed by Jury 184-185 Defamatory Words Against Unlicensed Practitioner 162 Dangerous Occupations Special Responsibility 123-124 Persons Who Deal With Poisons 195-196 Employer and Clerk Legal Relation of...^. 221-222 History of Pharmacal Jurisprudence Beginnings of Pharmacy 77-78 Early Legal Conditions 78-81 Early English Statutes 81-90 Early French Statutes 90-91 Grocers as Druggists 82 Apothecaries in England 91-92 Intoxicating Liquors Sale of by Druggist 134 Included in " Medicine and Poisons " 134 Unlawful Use of in Medicines 134-135 Under " Local Option " Law 135 Insurance On Stock of Drugs 247-254 260 INDEX. PAGE Jurisdiction Of Board of Pharmacy 131 Nature of that of Board of Pharmacy 160 Independent 163 Appeal fromAction of Board 161 Jurisprudence Definition of. 71 Pharmacal 71-76 License To Practice Pharmacy 158 Issued by Whom 158 Issued to Pharmacist 158 Issued to Assistant Pharmacist 158 To Those Practicing Antecedent to Act 159 Discretion of Board Herein 159-160 Registration Required 159 Revocation of 160-162 Liability of Pharmacist Dual Nature of 231 Not Without Fault 193, 231, 234 Burden of Proving Want of Care 232 For Not Labeling Poisons 232 When Purchaser is Fully Warned 232 For Filling Prescription With Overdose of Poison.. 233 Recommending Another's Prescription 235 Not Excused by Negligence of Physician 235-236 Without Regard to Privity of Contract 214, 220,237 For Attempting to Practice Medicine 95-112 For Prescribing Patent Medicine 104-110 For Error in Preparing Prescription 197-209 For Act of Clerk 204-206 For Negligence 176-196 As Manufacturer 210-222 Legislation The Initiative 121-123 Malpractice By Pharmacist 112-114 Manufacturing Pharmacist Liability for Mislabeling Drug and Putting it on Market 210-222 INDEX. 261 PAGE Medicine Practice of Defined 105-106 Restrictions on Practice of 1>5-112 Police Power of State to Regulate 120-121 Constitutional Status of Restrictions on Practice.... 145-147 Property Rights in Practice 145 Practice of by Pharmacist 108-109 Relations of to Pharmacy 94- 96 Negligence Definition of 234 Liability for 216-217 (See also "Druggist" & "Liability of Pharmacist") Pharmacal Jurisprudence Limits of 74-76 Pharmacist Defined 93 His Relation to Statutes Regulating Pharmacy 94 Licentiate 158 Assistant] 158 Degree of Knowledge and Skill of. 129 Duty of Under General Law 129 In Charge of Pharmacy 134 Pharmacy Defined 93 Practice of Under Common Law 115-116 Practice of Defined r. 93,151 Relation of to Medicine 94- 95 Restrictions on Right to Practice 130 Reasons for Restrictions 116-120 Practicing Without License 162 Penalty for Practicing Without License 133 Accumulated Penalties 135 Poisons By Whom May Be Sold 158 Labeling and Registration of 132-232 Overdose of in Prescription 233 In Prescription Not to Be Labeled 134 Penalty for Sale of Without Label 133 Physician License of Under Statute 96, 99, 102, 107 262 INDEX. PAGE Penalties for Illegal Practice by 111-112 Recovery for Services by Unlicensed 96- 99 Emergency Cases 106 Emergency Case Defined 107 Malpractice by Under Statute 112-114 May Not Practice Pharmacy 152 May Compound and Sell Medicine to His Own Patient 162 Interest of in His Prescription 239-241 Prescription of Physician Must Be Filed by Pharmacist 241 As Evidence 241 Ownership of. 239-241 Qualifications of Pharmacist Under General Law 128-130, 189 Under Statutes„ 130-131 How Determined 130-131 Recovery for Medicines and Services May Not Be Had for Illegal Practice 110 Registration Of Pharmacist 131 Validity of Time Limit for 159-160 Right of Action for Damages Against Pharmacist 188 Held to Survive 238 Inherited 202 Against Remote Vendor 217-219 Trade-Mark Defined 242 May Consist of What 242-243 Registration of. 242 Usual Domestic Remedies Excepted from Restrictions on Practice of Pharmacy 133, 235 I .^£„ BERKELEY LIBRARIES ""^lllipi!l||(ii|(i|i - ■'''"'I'mmmimimmmimi A