Opinion of the Court, per BROWN, J.

68 id. 528.) Conceding for the sake of argument, that there was disorder in the surgery for which the defendant was responsible, the complaint should, nevertheless, have been dismissed, because there was no evidence tending to show that this condition of the surgery caused the injury. (Dobbins v. Brown, 119 N. Y. 118; Searles v. M. R. Co., 101 id. 661; Taylor v. City of Yonkers, 105 id. 202.) Having once objected to evidence as to the surgeon's condition and behavior, it was not necessary to repeat the objection to the same class of testimony, and its reception was error. (Sherman v. D., L. & W. R. R. Co., 106 N. Y. 542, 547; Church v. Howard, 79 id. 415, 421; Dilleber v. H. L. Ins. Co., 69 id. 256, 260; Anderson v. R., W. & O. R. R. Co., 54 id. 334; Arthur v. Griswold, 55 id. 400; Taber v. Van Tassel, 86 id. 642; Erben v. Lorillard, 19 id. 299.) The plaintiff could not recover any special damages. (Uransky v. D. D., E. B. & B. R. R. Co., 118 N. Y. 304; Gunib v. T. T. S. R. Co., 114 id. 411; Baldwin v. W. R. R. Co., 4 Gray, 333; Taylor v. Town of Monroe, 43 Conn. 36.)

M. L. Towns for respondent. It being conceded that some measure of care was required, the rule of the court requiring only ordinary care was favorable to defendant. (Thomas v. Winchester, 6 N. Y. 397; Van Wyck v. Allen, 69 id. 52, Horn v. Meakin, 115 Mass. 326; Treadwell v. Whittier, 80 Cal. 575.

BROWN, J. The learned counsel for the respondent contends that when the plaintiff applied for quinine she had a right to rely upon receiving that medicine, and if she was given anything else the defendant was liable for the injuries sustained, and that mistake upon the part of the physician. having charge of the ship's medicines was not a defense.

Van Wyck v. Allen (69 N. Y. 62), and Thomas v. Winchester (6 id. 397), are the authorities cited in support of that proposition.

The first case was an action upon contract for breach of an implied warranty. The main question there decided related

Opinion of the Court, per BROWN, J.

to the rule of damages. The case has no application to an action for a wrong which has its foundation in the violation of a duty entirely outside of and beyond the stipulations of the contract. Thomas v. Winchester was decided upon the negligence of the defendant. The trial court charged the jury that "if the defendant was guilty of negligence in putting up and vending the extracts in question, the plaintiff was entitled to recover," and this court held that the liability of the defendant did not arise out of any contract or direct privity between him and the plaintiff, but out of the duty imposed upon him to avoid acts in their nature dangerous to the lives of others. And in carelessly labeling a deadly poison as a harmless medi cine and sending it so labeled into the market, the court found the negligence upon which a recovery was sustained.

But whether the druggist, who made the immediate sale of the poison to the plaintiff, would have been iiable to her, or whether he was justified in selling the article upon the faith of the defendant's label, was not in that case decided.

That precise question was decided, however, in Brown v. Marshall (47 Mich. 576) and in Beckwith v. Oatman (43 Hun, 265).

In both of these cases a recovery was permitted by the trial courts upon proof of the fact of a sale of poison to a person who called for a harmless drug, and the question of negligence was withdrawn from the consideration of the jury over the defendant's objection and exception.

In both cases the exception was sustained, the appellate courts holding that a failure on the part of the druggist or his clerk to exercise due care and skil. must be proved.

We quote with approval from the opinion of Judge COOLEY in the Michigan case: "The question 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 supposable. He

Opinion of the Court, per BROWN, J.

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 protection. But how misfortune occurs is unimportant 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 justly be required.

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is proper and reasonable that the care required shall be proportionate to the danger involved. But we do not find that the authorities have gone so far as to dispense with actual negligence as a necessary element in the liability when a mistake

has occurred."

No case is cited which conflicts with the rule thus stated, and I think no authority to the contrary exists in this state.

The rule of liability applicable to a druggist in cases of this character is the same as that which governs the liability of professional persons whose work requires special knowledge or skill, and a person is not legally responsible for any unintentional consequential injury resulting from a lawful act when the failure to exercise due and proper care cannot be imputed to him, and the burden of proving such lack of care, when the act is lawful, is upon the plaintiff. (Brown v. Marshall, supra; Thomas v. Winchester, supra; Beckwith v. Oatman, supra; Losee v. Buchanan, 51 N. Y. 476–488; Carpenter v. Blake, 75 id. 12; Morris v. Platt, 32 Conn. 75; Simonds v. Henry, 39 Me. 155; Fleet v. Hollenkemp, 13 B. Mon. [Ky.] 219.)

Negligence of the defendant, therefore, being the foundation of the plaintiff's cause of action, we proceed to the consideration of the facts of the case.

The defendant was a common carrier of passengers, and we need not discuss whether the common law imposed upon it any duty to treat those who were sick, nor whether it made it responsible for their proper care or management.

The duty that it assumed in this respect in this case was

Opinion of the Court, per BROWN, J.

imposed upon it by the statute of Great Britain under the laws of which it was incorporated.

That statute, known and cited as "The Passengers' Act, 1855," and entitled "An act to amend the law relating to the carriage of passengers by sea," passed August 14, 1855, enacts: 1. (§ 41.) That "Every passenger ship shall

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carry a duly qualified medical practitioner who shall be rated on the ship's articles."

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2. (§ 43.) "The owner or charterer of every passenger ship shall provide for the use of the passengers a supply of medicine * * * proper and necessary for diseases incident to sea voyages and for the medical treatment of the passengers during the voyage; and such medicines shall in the judgment of the emigration officer at the port of clearance be good in quality and sufficient in quantity for the probable exigencies of the intended voyage, and shall be properly packed and placed under the charge of the medical practitioner * * to be used at his discretion."

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3. (§ 44.) "No passenger ship * * shall clear out or proceed to sea until some medical practitioner to be appointed by the emigration officer at the port of clearance shall have inspected such medicines

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as are required to be and shall have certi

supplied by the last section fied to the said emigration officer that the said ship contains a sufficient supply, etc."

And by section 42 it was further provided that "no medical practitioner should be considered to be duly qualified for the purposes of this act unless authorized by law to practice in some part of her Majesty's dominions as a physician, surgeon or apothecary, nor unless his name shall have been notified to the emigration officer at the port of clearance and shall not be objected to by him."

It was alleged and proved that the defendant, for the purpose of advertising its line, issued a prospectus which contained the following statement: "An experienced surgeon is carried on board every ship * * All medicines, medical comforts and attendance required are supplied gratis."

Opinion of the Court, per BROWN, J.

This prospectus it will be observed went no further in its representation than the requirements of the statute. A medical practitioner duly qualified as required by the provisions of the act quoted may fairly be assumed to be referred to and the fact that no charge was made for medicines neither added to nor qualified the duty resting upon the defendant under the law. The defendant's liability must be sought for in its failure to perform the duty imposed upon it by the statute.

Beyond that it had assumed none and had none to perform and consequently violated none owing to its passengers. If the things which the statute required it to do were performed with due and proper care, its duty to the passengers was discharged.

The obligations imposed by the statute were twofold. First, to employ a duly-qualified physician, and second, to provide a supply of medicines properly packed and labeled and suitable and necessary for disease incident to sea voyages. When these two things had been done and the certificate of their performance given by the government officers the ship was permitted to proceed upon its voyage and the medicines. were from that time under the charge of the physician to be used at his discretion. No negligence is claimed to exist in the performance of either of these duties. No evidence was offered that the supply of medicine was insufficient in quantity or quality and the respondent's counsel concedes that the competency of the physician was established and the court charged the jury that for his negligence the defendant was not responsible.

The plaintiff, however, gave evidence by a passenger that he applied to the physician for medicine on the same evening that the plaintiff did and that he found the "Surgery" where the medicines were kept in disorder and confusion. That some of the bottles were in the racks and others on the racks and looked as if they were out of place, and it was by the trial court left to the jury to determine whether the " Surgery" was in such a condition of confusion as to show that the company did not use ordinary care in providing medicines and properly SICKELS VOL. LXXXVII.

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