circumstances where the passenger is powerless to protect himself-applies to the druggist. So, too, the life and death. of a customer at the druggist's counter is at hazard, and he is equally dependent for security upon the care and skill of the druggist, and is equally powerless to protect himself. Are the agencies by which the customers may be injured by mistake exclusively under the management and control of the druggist? To ask this question is to answer it. The poisons and the harmless medicines in which he deals are on his shelves in his receptacles. He puts them there, he takes them down, he deals them out to the customer, who is not presumed to be able to identify them, and who, as a rule, would not know quinine from strychnine or acetanilid from phosphate of soda. And is a mistake in the dealing out of medicine such an accident as may ordinarily be expected when due care is used by the druggist? Most certainly not. Such being the case, no sound reason can be found for refusing to apply the rule above announced to the case of a druggist dealing out a poisonous drug by mistake to a customer who asks for a harmless remedy, and we hold that it does apply. And when it is shown that a customer calls upon a druggist for a harmless remedy, and the druggist or his clerk deals out to him a poison by mistake, these circumstances make a prima facie case of negligence against the druggist, and call upon him to show that his mistake was, under the circumstances, consistent with the exercise of due care on his part; and the burden is not imposed upon the purchaser of the drug to go behind the druggist's counter and into the details of his business, and explain how it came about that the druggist made the mistake, and that there was negligence in the way the goods were handled by him somewhere in the course of their transit through his hands into the hands of the purchaser.

3 Knoefel v. Atkins, 40 Ind. App. 428, 81 N. E. 600. The court overruled Howes v. Rose, 13 Ind. App. 674, 42 N. E. 303, 55 Am. St. 455, on this point, and adds: "This

view is not inconsistent with the decision of the Supreme Court of Michigan in the case of Brown v. Marshall, 47 Mich. 576. In that. case a mandatory instruction was

§ 641. Complaint-Pleading.

A complaint which charges that the defendant was a druggist, that he negligently sold to the plaintiff a particular drug that was poisonous instead of one that was not poisonous, which was ordered by the plaintiff, to the plaintiff's damage, states a cause of action. "It is not, generally speaking, necessary in actions for negligence that the complaint set forth the circumstances which tend to show negligence. It is sufficient to allege generally the doing of the act that led to the injury, and that it was negligently done. The alleged wrongful act charged in this case, as leading to the injury, was the delivery by the defendant's clerk to Wolfe, the agent of Dorcas Scott, when calling for phosphate of soda, of the poisonous drug acetanilid, and to allege that this act was negligently done was sufficient." If the complaint alleges negligence generally, and gives the details of the transaction, it is not necessary that the evidence show such details to be true, the details being uncontrolling in the complaint as well as in the evidence.2 "The wrongful act complained of the act which led to the injury"-said the Supreme Court of Ohio, "was carelessly selling and delivering to the plaintiff a deadly poison instead of the harmless medicine called for. . . The allegation in a pleading that the party complained against negligently committed the particular act which led to the injury when redress is sought, furnishes the predicate from the proof of all such incidental facts and circumstances, both of omission and commission, as fairly tend to establish the negligence of the primary fact complained of." In an action to recover damages for caus

given that entirely left out of consideration any explanation the druggist might give of the accident, consistent with the exercise of due care on his part. We do not hold that the druggist may not show that the mistake made by him was excusable, and that the circumstances were such that he could not be charged with lack of

due care. What we do hold is this, that the burden rests upon the druggist to explain his own mistake."

1 Knoefel v. Atkins, 40 Ind. App. 428, 81 N. E. 600.

2 Knoefel v. Atkins, 40 Ind. App. 428, 81 N. E. 600.

3 Davis v. Guarnieri, 45 Ohio St 470, 15 N. E. 350, 4 Am. St. 548.

ing the death of the plaintiff's child, a complaint which alleges that plaintiff's agent, as a customer of the defendant druggist, demanded quinine, but was by the defendant's clerk given morphine instead, and, relying on the representations of the clerk that the drug was quinine, plaintiff administered the same to his daughter, from the effects of which she died, states a good cause of action.*

§ 642. Where Action Must be Brought.

It would seem axiomatic that an action to recover damages for injuries sustained by negligence in improperly administering or filling prescriptions must be brought in the county or district where the defendant resides; but a statute here may change this rule. Thus a statute of Texas provided that an action for trespass might be brought in the county where the trespass was committed. The petition in an action for injuries in consequence of the use of drugs alleged that the drugs which the plaintiff used, through the fraud of the defendant, had permanently impaired plaintiff's hearing and caused her severe pain; and the drugs had been sent by defendant from his residence in another county to plaintiff's residence in the county where the suit was instituted, and there used by the plaintiff. It was held that the court of the county wherein the suit was brought-the county where the drug was used-had jurisdiction of the person of the defendant and the cause of action, notwithstanding the fact that the defendant lived in another county.1

§ 643. Negligence in Treatment of Injured Person. It is no defense that the medical treatment to relieve the plaintiff was negligent; but a charge that the defendant is

"Evidence, therefore, may be sufficient to establish negligence on the part of the appellant in delivering acetanilide to his customer who called for phosphate of soda, even though it does not establish the particular facts and cir

cumstances averred in the complaint." Knoefel v. Atkins, 40 Ind. App. 428, 81 N. E. 600.

4 Brunswig v. White, 70 Tex. 504, 8 S. W. 85.

1 Winter v. Terrill, 42 Tex. Civ. App. 598, 95 S. W. 761.

liable, without regard to negligence or legal fault, is error.1 So in an action against a druggist for improperly compounding a prescription with poisons which caused the death of the wife of the plaintiff, it was held that the action was not barred by proof that the woman was at the time very sick with yellow fever, that the attending physician gave a certificate of death from yellow fever, and that the husband caused this certificate to be published in the newspapers.2

§ 644. Punitive Damages.

In a case of gross negligence in the sale of drugs, punitive damages may be awarded; and in some jurisdictions, if not most of them, such damages can be awarded although the sale is made by a servant of the defendant, whether that servant be an individual or corporation.1

§ 645. Servant Selling Drugs.

If a servant fills a prescription wrongly, to the injury of the person taking it; or if he sells a drug when another is called for, which results in an injury, his master will be liable civilly for his act, even to punitive damages in some jurisdictions.1 Thus where the brother of the defendant druggist, in the latter's absence, employed a clerk for his, the defendant's, drugstore, it was held that the defendant was liable because of injury resulting from a prescription the clerk improperly filled. The fact that a statute requires pharmacists to be registered does not relieve a druggist who

1 Brown v. Marshall, 47 Mich. 576, 11 N. W. 392, 41 Am. Rep. 728.

2 McCubbin v. Hastings, 27 La. Ann. 713.

1 Smith v. Middleton, 112 Ky. 588, 66 S. W. 388, 56 L. R. A. 484, 99 Am. St. 308.

1 Smith v. Middleton, 112 Ky. 588, 66 S. W. 388, 56 L. R. A. 484, 99 Am. St. 308; Brunswig v.

White, 70 Tex. 504, 8 S. W. 85; Davis v. Guarnieri, 45 Ohio St. 470, 15 N. E. 350, 4 Am. St. 528; Beckwith v. Oatman, 43 Hun 265; Smith v. Hayes, 23 Ill. App. 244; Knoefel v. Atkins, 40 Ind. App. 428, 81 N. E. 600.

2 McCubbin v. Hastings, 27 La. Ann. 713; Beckwith v. Oatman, 43 Hun 265.

employs a registered pharmacist as a clerk from liability for negligence of the latter in putting up a prescription.3

Of course, where a druggist is sued for the mistake of his clerk, resulting in injury, the plaintiff must show the clerk's want of due care and skill.* Where a person asked a clerk for a solution to wash his wound, and the clerk furnished a solution containing 86 percent of carbolic acid, it was held that the clerk's employer was liable for the damages occasioned by the use of the solution.5

§ 646. Sale of Unwholesome Food.

In an early authority it has been said that a guest might maintain an action against a publican for an injury received from unwholesome food;1 and in another early case it was said that "if a man sells victuals which is corrupt without warranty, an action lies, because it is against the commonwealth."2 "A dealer who sells goods for consumption impliedly warrants that it is fit for the purpose for which it is sold. If, in adition to this implied warranty, it is found that he was negligent in selling meats that were dangerous to those who ate them, he would be liable for the consequences of his act, if he knew it to be dangerous, or, by proper care on his part, could have known its condition." The liability does not rest so much upon an implied contract, as upon a violated or neglected duty voluntarily assumed; and it is not necessary to allege in the complaint that the defendant knew of the injurious quality of the food. Thus a statute

96 Mich. 245, 55 N. W. 812, 21 L. R. A. 139. "Those are questions for the jury and not for the court," it was said in the case just cited. 4 Bishop v. Weber, 139 Mass. 410, 52 Am. Rep. 715; Wiedeman v. Keller, 171 Ill. 93, 49 N. E. 210, reversing 53 Ill. App. 382; Van Bracklin, 12 Johns. 467, 1 Am. Dec. 399; Winsor v. Lombard, 18 Pick. 62.