Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1910-09-02
FROM LAW COURT.
Decision in Case Of Trem-.
b|ay Versus kimbah.
Verdict Of S1400 for Alleged
Failure Of Duty Stands.
Druggist Gave Corrosive SubIImais
For chIorodine Tablets.

| script, WhitehouSe, j.
The plaintiff recovered a verdict of
$140O for an alleged failure of duty
on the part of the defendant regis
tered apothecary, who filled a ply
sician's prescription for the plaintiff
calling for chlcrodine tablets by sub
shutting corrosive sublimate tablets
containing about rs grains of BIZ
chloride of mercury and 7.3 of muriate
of amonia One grain of this mixture
was sufficient to cause death. 1t is con-
tended by the defendant that the mis-
take was made by one of the pro-
Eprietors of the store in having two
bottles side by side marked chlOro-
dine tablets, one of which, however.
contained the poisonous tablets in
question, and that these tablets so
closely resembled each other that it
was not negligence on the part of the
defendant to fill the prescription as he
did.
The rules of law governing this class
of cases are closely analogous to those
applicable to physicians and surgeons.
A registered apothecary, or any per-
son who undertakes to act in the ca
pacity of "a qualified druggist in pre-
pairing medicines and filling ply
| sicianS' prescriptions, is required by
law in the first place, to possess rea-
sonable and ordinary degree of knewl-
edge and skill with respect to the
pharmaceutical duties which he pro-
fesses to be competent to perform He
is not required to possess the highest
degree Of knowledge and skill to which
the art and science may have attained.
He is not required to have skill and
experience equal to the most eminent
in his profession. He is only required
to have that reasonable degree of
learning and skill whuch is ordinarily
possessed by other druggists in good
standing az to qualification in similar
| communities.
| In the second place the law imposes
| upon the druggist the obligation TO
| exercise all reasonable and ordinary
care and prudence in applying ms
knowledge and skill in compromising
medicines filling prescriptions and per-
| forming all of the other duties OF an
apothpcary. He is not bound to use
| extraordinary care and prudence. or d
| greater degree of care than is ordlna-
rily exercises by other qualified drug
gists. Ordinary skill is the test OF
qualifications and ordinary care is the
test of the application of it,
| Finally. in applying his knowledge
and exercising care and diligence, the
druggist is bound to give his patrons
| the benefit of his best Judgment. For
even IN pharmacy there is class OF
cases in which Judgment and discre-
ton must or may be exercised. Inc
druggist is not necessarily responsible
for the results Of an error of Judgment
which is reconcilible and consistent
with the exercise of ordinary skill and
care. He does not absolutely guarantee
| that no error shall ever be committed
in athc discharge of his duties. 1t is
| conceivable that there might be an er-
ror or mistake on the part OF a quail
| flied druggist which would not be held
actionabIe negligence.
| But while as has been seen, the legal
measure of the duty of druggists TO-
wards their patrons as in all other re-
| Iations Of life. is properly expressed ny
the phrase ordinary care" yet it must
not be forgotten that it is ordinary
care" with reference to that special
and peculiar business. In determining
what degree of prudence, vigilance ana
| tiIoughtfulnesS Will fill the require
Iments of "ordinary care in compound
| ing medicines and filling prescriptions
if is necessary to consider the poison
Gus character of 50 many OF the drugs
with which the apothecary deals ana
the grave and fatal consequence which
NAV follow the want of due care. IN
such n case "ordinary care calls for a
degree Of vigilance and prudence COM
Imensuratc with the danger involved.
| The general customer ordinarily has no
Idefinite knowledge concerning the numer-
ous medicines and poisons specified in
the United States Dispensatory and
pbarmacopoeia," which registered apoth-
ecaries are by our statutes expressly al
lowed to keep. but must rely lmphct'!
lnpon the druggist, who holds himself out
as one having the peculiar learning ana
skill and conceptions of legal duty neces-
sary 10 a safe and proper discharge vi
| that duty. "Ordinary care with reIel-
lence to the business of druggist MUS
| therefore be held to signify the hlehest
| pra cticabe degree of prudence, thouSht-
! fulness and vigilance and the most exact
and reliable safeguards consistent WIN
1.-The reasonable conduct of the business
| in order that human life may nor con-
stantlv be exposed to the danger howins
from the substitution of deadly polsons
for harmless medicine.
| Although the two bottles of tablets IN
Question both had the manufacturer la
bells mon them, it must be remembered
| that the tablets were not sold in unopen-
ed hotties as original packages but were
taken out of d large quantity in bottle
that had been opened, and thus the de-
PENDANT had full opportunity to inspect
and examine the tablets. 1t is inconcelv"
able that if he had given thoughtful at
| ~ntion to the matter he could have ran
ed to note the striking difference III the
lappearance of the tablets in the two bot
tiles bearing the same label. and the ex'
traordinary if not unprecedented tac'
that in one Of them the supposed chloro-
dine tablets were white. Yet so far az
appears, no special examination or effort
was made to determine the real charac
lNer of the white tablets, but apparently
without question or hesitation they were
delivered to the plaintiff as harmless med
icne. The explanation of the mistake
was evidently unsatisfactory to the jury
1t is the opinion of the court that there
wac efficient evidence to support the