188  EDITORIAL. 
"  It  should  be  premised  here,  that  the  foundation  of  the  action  is  the  negligence 
of  the  defendant.  The  business  of  a  druggist  was  one  that  required  him  to  ex- 
ercise extraordinary  care  and  prudence,  so  far,  at  least,  as  the  public  are  con- 
cerned ;  and  the  reason  for  this  is  that  in  proportion  as  accidents  may  be  fatal, 
or  the  community  may  be  injured,  more  or  less,  by  neglect  or  omissions,  persons 
should  be  careful  in  avoiding  these  accidents.  But  all  this  is  founded  on  the 
idea  of  negligence,  for  the  law  does  not  require  that  an  apothecary  shall  insure 
that  at  all  hazards  a  prescription  is  accurately  put  up. 
It  was  claimed,  on  the  part  of  the  plaintiff,  that  irrespective  entirely  of  any 
care  exercised  by  defendant,  he  was  bound  to  put  up  the  article  required,  and 
that  if  he  failed  to  do  so,  the  other  party  would  be  entitled  to  recover  for  any 
damage  arising  to  himself  from  such  a  failure;  and  the  case  was  put  by  counsel 
that,  ifa  merchant  was  requested  to  put  up  a  certain  article  of  commerce,  and 
put  up  anything  else,  he  was  bound  to  respond  in  damages.  This  may  be  true, 
but  it  do°s  not  follow  he  isresposible  for  all  the  consequences.  No  man  would 
be  safe  if  he  was  required  at  all  hazards  to  guard  against  accidents.  If  a  mer- 
chant dealing  in  flour  should  sell  an  article  not  manufactured  by  himself,  that 
looked  fair,  yet  happenied  to  be  mixed  with  poison,  he  would  not  be  responsible 
for  any  accident  growing  out  of  the  sale,  where  the  transaction  was  one  in 
which  he  was  not  at  all  negligent.  The  commodity  not  being  as  it  was  repre- 
sented in  the  first  instance,  he  would  be  bound  to  restore  the  price  paid  for  it, 
but  where  he  had  exercised  prudence  and  care  in  the  selection  of  the  article,  he 
would  not  be  responsible  for  accidental  consequences. 
The  same  rule  applies  to  a  physician  or  apothecary  ;  he  is  responsible  only 
on  the  ground  of  negligence.  It  might  be  illustrated  in  this  way  :  If  this  med- 
icine had  been  in  the  first  instance  properly  put  up,  and  the  plaintiff  did  not  im- 
mediately take  it  with  him,  but  left  the  store  for  a  short  time,  (as  was  the  case,) 
and  then  returned  and  took  it  away — some  other  article  might  have  been  sub- 
stituted in  the  meantime,  by  the  intervention  of  an  agent  over  whom  the  defend- 
ant had  no  control — or  that  the  defendant  not  being  the  manufacturer  of  the 
article,  obtained  it  as  genuine,  when  in  fact  it  turned  out  not  to  be  so,  but  dif- 
ferent from  that  which  he  supposed  it  was— in  either  of  these  cases  he  would 
not  be  responsible  further  than  for  the  price  paid  for  the  medicine." 
The  Court  then  reviewed  the  evidence  and  its  bearing  on  theseprinciples. 
"The  first  inquiry  which  presented  itself  was  whether  the  article  that  was  put 
up  was  that  which  the  prescription  called  for.  If  it  was,  there  was  an  end  of 
the  action.  Here  the  burden  of  the  proof  rests  on  the  plaintiff.  He  claims  it 
was  belladonna.  Were  the  Jury  satisfied  it  was?  Had  the  plaintiff  sufficient- 
ly accounted  for  the  possession  of  the  gallipot  throughout  the  whole  time  ?  As 
to  the  identity  of  the  box  itself,  the  defendant  claims  there  is  a  link  in  the  chain 
wanting — that  a  change  in  the  article  may  have  taken  place,  and  that  a  boy 
being  sent  into  town  with  the  medicine,  furnishes  a  theory  by  which  that  change 
may  have  been  effected.  In  questions  of  this  kind  it  was  not  required  of  the  Ju- 
ry to  be  satisfied  beyond  all  doubt,  but  to  exercise  their  judgment  as  men  of 
common  sense,  and  say  where  does  the  weight  of  evidence  lead  to. 
The  next  question  was,  whether  the  contents  are  belladonna.  The  plaintiff 
alleged  that  it  was  analyzed  in  the  city  of  Boston.  This  was  an  appropriate 
means  of  determining  its  nature  ;  but  so  far  as  they  undertook  to  rely  upon 
it,  the  Jury  should  look  into  the  evidence,  and  say  whether  the  party  had  com- 
petent skill  to  perform  the  service,  and  applied  the  proper  means  to  arrive  at 
the  results.  If  this  is  not  satisfactory,  they  should  then  examine  the  other  evi- 
dence referring  to  the  ordinary  means  of  ascertaining  the  nature  and  character 
of  the  article. 
It  was  incumbent  on  the  part  of  the  plaintiff,  not  only  to  show  that  he 
received  a  different  article  from  that  complained  of,  but  that  it  was  belladon- 
nas and  that  he  received  an  injury  from  it,  and  traces  the  ills  of  which  he  com- 
plains, directly  to  its  influence.     The  testimony  of  experts  must  be  availed  of. 
