Morrill, J., delivered the opinion of the court:

This is an action to recover for personal injuries sustained by plaintiff's intestate through the alleged negligent sale by defendant's servant to one Freeman, of a poisonous preparation known as oil of checkerberry, in place of essence of checkerberry; the poison was taken by deceased, and resulted in his death.

The case is reported to the law court for determination of the legal rights of the parties, upon so much of the evidence as is legally admissible; the certificate of the presiding justice is in the usual form. All technical questions of pleading are deemed to be waived. Whitman v. Allen, 123 Me. 1, 121 Atl. 160; Pillsbury v. Brown, 82 Me. 450, 9 L.R.A. 94, 455, 19 Atl. 858. The question is presented whether on all the evidence, giving it the weight and effect that a jury ought to give it, plaintiff is entitled to judgment. Tatro v. Maine C. R. Co. 108 Me. 390, 81 Atl. 216.

The defendant, a druggist in Augusta, had occasion to be absent from his store on the 20th day of July, 1921, from about 6:05 in the evening for about one hour and a half; during that period the store was open and left by defendant in charge of a boy, Edmund Auger, a few months more than seventeen years old; this boy lived in the block in which the store was located and worked in the Edwards cotton mill; he left school when in the seventh grade; for about three years he had worked at times for defendant, sweeping the store, doing errands, selling cigars, soda, and ice cream, on an average about two hours a week. He was manifestly incompetent to be left in charge of the store, and the action of the defendant in that respect was in violation of Rev. Stat. chap. 20, § 10, and plainly neglicharge of boy- gent, and this is so, notwithstanding he had instructed Auger not to sell medicines and drugs.

Druggist-leaving store in liability.

On the 20th of July, 1921, the de

ceased and one Clifford E. Freeman, former acquaintances, met at a regimental reunion in Augusta; about 5 o'clock in the afternoon they left the muster field and went directly to Tetrault's drug store, where the boy, Auger, was in charge. The deceased remained on the sidewalk while Freeman entered the store. The testimony of Freeman and Auger does not differ very materially as to what took place.

Freeman says:

I told him-I asked him if he had any essence of checkerberry.

Q. Did you say anything else to him at that time?

A. No.

Q. Did he make any reply to that question that you put to him?

A. He said, "Yes," he did.

Q. Go on and state what you said to the clerk and what he said to you?

checkerberry here to clean your A. So he says, "We have got some teeth with." I says, "I don't want to clean my teeth." He says, "Why don't you drink jakey?" I says, "I will if you have got it." "Well," he says, "we haven't got it." So he produced a bottle, and he says, "Smell of it.' I smelled of it, and I says, "It smells like the essence of checkerberry," and he poured me out 4

99

ounces.

Q. Did he deliver you the checkerberry in a 4-ounce bottle? A. Yes, sir.

Auger testifies to substantially the same effect, except his statement is that Freeman asked for "5 ounces of checkerberry."

The following morning Freeman related the circumstances to the county attorney as follows, according to the latter's testimony: "He [Freeman] told me that they had decided that they wanted something to drink, and he had suggested to Cullinan that he thought something could be purchased at Tetrault's drug store and that they went up there. They went in, or he went in, and found a young man behind the counter whom he thought was seventeen or eighteen years of age, as

I remember, and asked the fellow if he had any checkerberry, and the fellow answered him by saying he was not sure of it, but that they had something there that they sold to clean teeth with; pointed to the bottle and reached for it and handed it to Freeman and asked him to smell of it to see if that was what he wanted. Freeman smelled of the bottle, passed it back to him, and said that it was what he wanted. Four ounces were purchased."

Freeman then left the drug store, and accompanied by Cullinan purchased a bottle of ginger ale; they poured out part of the ginger ale, and replaced it with about one half of the contents of the bottle purchased at the drug store, and each drank about half of the mixture. They then went to a restaurant, where Cullinan ate supper; while the latter was eating, Freeman partly filled the ginger ale bottle with water, and, with Cullinan's knowledge, poured into it the remainder of the contents of the other bottle; a part of this mixture Cullinan drank.

It is admitted that the liquid purchased by Freeman at the defendant's store was methyl salicylate, which, according to the Standard Dictionary, is "artificial oil of gaultheria [wintergreen] synthetically prepared by distilling methyl [wood] alcohol with salicylic and sulphuric acids. It resembles the true oil in taste and color," and in odor, as appears by the case. From the effects of drinking the mixture. both young men were made sick, and Cullinan died the next morning. The bottle in the drug store from which the liquid sold by Auger was taken was identified the next morn

ing and found to be marked "Methyl Salicylate."

The plaintiff claims that the liability of defendant is thus established, upon the authority of Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455; Norton v. Sewall, 106 Mass. 143, 8 Am. Rep. 298; Wellington v. Downer Kerosene Oil Co. 104

Mass. 64. The instant case is clearly within the principle recognized in those cases, provided the deceased was not himself in fault, or negligence on the part of Freeman cannot be imputed to him.

The declaration contains one count, based upon alleged negligence of defendant. The defendant has specially pleaded, and has the burden of showing (Rev. Stat. chap. 87, § 48) contributory negligence of the deceased. The statute did not "undertake to to change the substantive law of negligence in any respect. The tribunal hearing the case must still be satisfied on all burden of proof the evidence that the of negligenceplaintiff was in the

Evidence

effect of statute.

exercise of due care, and did not, by his own acts of omission or commission, help to produce his injury, and that the defendant was negligent. All these elements must appear by the greater amount of credible evidence." Duggan v. Bay State Street R. Co. 230 Mass. 370, 377, L.R.A. 1918E, 680, 119 N. E. 759.

The evidence clearly establishes that the conduct of Freeman was more than negligent; it was foolhardy. It appears that both these young men went to defendant's store for the purpose of purchasing an intoxicating liquor; that regardless of whether Freeman called for "essence of checkerberry," as he testified, or "checkerberry,' "checkerberry," as Auger testified, they intended to obtain essence of checkerberry, which contains 5 per cent oil of checkerberry and 95 per cent alcohol. Freeman's testimony establishes that they intended to purchase it for use as a beverage, "for the alcohol in it." The incom

petency of the clerk was evident to Freeman; the latter told the county attorney: "He [Auger] didn't ap pear to me to know much concerning the checkerberry or anything regarding the things in the store." To purchase anything in a drug store from a boy who did not know what he was selling, had no realization of

and was given citric acid instead; that, relying on its being Epsom salts, he swallowed a large spoonful of the citric acid, causing burns to his mouth, throat, and stomach, followed by violent vomiting and severe hemorrhages. He further

alleged that, by reason of the negligence and carelessness of the defendants, their servants and employees, he was caused great pain and suffering, which he specifically described in his petition.

Admitting the operation of the drug store, the defendants denied every other allegation charged.

The court charged the jury that in the conduct of a drug store, and in dispensing its commodities, defendants were bound to use that degree of care in the dispensing of the drugs that persons of ordinary prudence engaged in that business were accustomed to use under the same or similar circumstances. He further charged as follows: "It is for you to say whether or not this plaintiff did go to these defendants' drug store to purchase Epsom salts, as he claims, whether he asked for Epsom salts when he went there, and whether the clerk who waited upon him delivered to him citric acid, whether or not, believing what he had obtained to be Epsom salts, he took a dose of the same, as he claims, and, in general, you are to determine all of the facts in controversy as presented here by the evidence, and then it is for you to say from these facts, as you determine them to have existed, whether or not this defendant was negligent at the time and place in question and under the circumstances then and there existing."

There was a verdict and judgment for the plaintiff in the common pleas court, which was affirmed by the court of appeals. Error is now prosecuted here.

Messrs. Scott & Bissell for plaintiffs in error.

Messrs. Krueger & Pelton for defendant in error.

Jones, J., delivered the opinion of the court:

In the trial court the issues were found by the jury in favor of the plaintiff, and there was ample evidence to sustain them, including the fact that the clerk of the defendants, when asked for a pound of Epsom salts, gave the plaintiff citric acid by inadvertence. The court charged the jury that, if such action on the part of the clerk resulted from the negligence of the latter in the dispensing of such drug, the plaintiff could recover. This was an action ex delicto, the gist whereof is negligence. If it was true, as charged in the petition, that the defendants sold and delivered citric acid, a harmful medicine, which, taken in the quantity wherein Epsom salts are ordinarily used, caused the pain and suffering which the plaintiff charged, these facts, in themselves, constitute a take of drug cause of action, and

Poisons-mis

clerk-liability.

proof thereof would authorize a recovery, in the absence of countervailing evidence overcoming the proof so offered.

It is the contention of the plaintiffs in error that a distinction should be drawn between the sale to a customer of a deadly poison and the sale of a drug which is harmful and injurious to the customer, but not deadly. However, there is no distinction in principle between the sale of the one and the other. The keeping and dispensing of deadly of deadly poisons may impose greater care upon the druggist, but it is no less an obligation upon his part to see that the order of the customer is complied with, and that the customer does not receive in lieu thereof a drug which will cause pain and suffering when innocently taken by him upon the reliance and belief that he is taking the harmless drug asked for.

The general principle of liability in such cases is announced in the following text: "Where a druggist's clerk in the course of his em