107 Me. 53 | Me. | 1910
The plaintiff recovered a verdict of $1400 for an alleged failure of duty on the part of the defendant, who was a registered apothecary employed by the Hamel Brothers in their drug store at Livermore Falls, and in that capacity filled a physician’s
The rules of law governing this class of cases are closely analogous to those applicable to physicians and surgeons. A registered apothecary, or any person who undertakes to act in the capacity of a qualified druggist in preparing medicines and filling physicians’ prescriptions, is required by law in the first place, to possess a reasonable and ordinary degree of knowledge and skill with respect to the pharmaceutical duties which he professes to be competent to perform.
In the second place the law imposes upon the druggist the obligation to exercise all reasonable and ordinary care and prudence in applying his knowledge and skill in compounding medicines, filling prescriptions and performing all of the other duties of an apothecary. He is not bound to use extraordinary care and prudence, or a greater degree of care than is ordinarily exercised by other qualified druggists. Ordinary skill is the test of qualification 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 a class of cases- in which judgment and discretion must or may be exercised. The druggist is not necessarily responsible for the results of an error of judgment which is reconcilable and consistent with the exercise of ordinary skill and care. He does not absolutely guarantee that no error shall ever be committed in the discharge of his duties. It is conceivable that there might be an error or mistake on the part of a qualified druggist which would not be held actionable negligence. Pullen v. Wiggin, 51 Maine, 596 ; Leighton v. Sargent, 7 Foster (N. H.) 460; Small v. Howard, 128 Mass. 131. As to druggists see Thomas v. Winchester, 6 N. Y. 397; Norton v. Sewall, 106 Mass. 143 ; McDonald v. Snelling, 14 Allen 290 ; Brown v. Marshall, 47 Mich. 576.
But while as has been seen, the legal measure of the duty of druggists towards their patrons, as in all other relations of life, is properly expressed by 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 and thoughtfulness will fill the requirements of "ordinary care” in compounding medicines and filling prescriptions, it is
In the case at bar no question appears to have been raised in regard to the skill and experience of the defendant as a registered apothecary, and it was incumbent upon the plaintiff to prove that in delivering to him corrosive sublimate instead of the chlorodine tablets called for'in the prescription, the defendant failed to exercise the high degree of care and prudence required of him under the rules above stated.
When the physician who prescribed the chlorodine tablets for the plaintiff, returned to the defendant the poisonous tablets of corrosive sublimate and informed him that "there must be a mistake,” the
But the evidence fails to support the contention that the tablets in both bottles had the same appearance. On the contrary, the physician distinctly states in his testimony that the tablets in the two bottles shown him by the defendant were wholly and strikingly different in both color and size, that in one were large white tablets "marked ‘poison’ in big letters on the tablets,” and in the other were the "real chlorodine tablets” small and very dark green in color, and having the same appearance as the small dark tablets exhibited in evidence to the court. The defendant denies that the word "poison” was stamped on the white tablets, but admits that the genuine chlorodine tablets with which he filled the plaintiff’s prescription, after the discovery of the mistake, were taken from the other one of the two bottles on the shelf labeled "chlorodine tablets,” and that those tablets "looked like” the two small dark green ones in evidence. He further states that the bottle from which the white poisonous tablets were taken disappeared without his knowledge.” There is evidence that chlorodine tablets are of different colors, but no evidence of white ones. The physician states that he never saw any white ones. There is a conflict of testimony, as already stated, upon the question whether the word "poison” was stamped on the white tablets delivered to the plaintiff by the defendant. One of these tablets exhibited in court has been so discolored and worn by handling that no letters can now be distinguished even with the aid of a magnifying glass.
It is the opinion of the court that there was sufficient evidence to support the conclusion manifestly reached by the jury that although the defendant may have been a skillful and competent druggist, he unfortunately omitted on the occasion in question to exercise such care and prudence and to take such reasonable precautions as the safety of his customer and the measure of his own legal duty required.
Motion for new trial-overruled.