1. A druggist is not liable for punitive damages in all cases when liable in tort for mistakes in filling prescriptions. [See note on this question beginning on page 1362.] Damages for mistake of druggist hospital fees. 5. Only such hospital fees and medical expenses as proximately result from a druggist's mistake in filling a prescription can be allowed as damages against him for the mistake. [See 9 R. C. L. 704, 709.] -epidemic as excuse for mistake. 6. A druggist is not relieved from liability for injuries caused by a mistake in filling a prescription, by the fact that, owing to an epidemic, his clerks were nearly exhausted. - mitigation exhaustion of clerks. 7. Evidence that, because of an epidemic, a druggist's clerks were nearly exhausted, may be considered in mitigation of punitive damages in an action to hold him liable for injuries caused by mistake in filling a prescription. 9. An experiment before the jury, as to the effect of a druggist's mixture upon a well man, is not admissible to contradict evidence as to its effect upon a sick and run-down woman suing for damages for its alleged harmful effect upon her. presumption as to effect of drugs. 10. Human beings are not sufficiently alike to warrant the presumption that when a drug produces a certain effect on one person, it will, to a certain extent, similarly affect another, taking into account age, strength, and other conditions present. Appeal cretion. rejection of evidence - dis 11. The exclusion of evidence of an experiment before the jury as to the effect of a drug which is alleged to have caused injuries for which damages are sought is not reversible error, since it is largely within the sound discretion of the trial court. APPEAL by defendant from a judgment of the Circuit Court for Ohio County in favor of plaintiff in an action brought to recover damages for personal injuries, alleged to have been sustained by a mistake in the filling of a prescription. Reversed. and blisters testified to by the plaintiff. The facts are stated in the opinion of the court. Mental distress caused by information that the drug taken was not the drug compounded is not a proper subject for compensation in damages, in the absence of substantial evidence of physical injury. Kentucky Traction & Terminal Co. v. Bain, 161 Ky. 44, 170 S. W. 499; Setter v. Maysville, 114 Ky. 71, 69 S. W. 1074; Fagan v. McRae, 169 N. Y. Supp. 577. The court erred in striking from defendant's answer the plea that a severe epidemic of Spanish influenza made such unprecedented demands on defendant drug company as constituted an act of God, and such defense was available not only to mitigate punitive damages, but to defeat the imposition of such damages. South Covington & C. Street R. Co. v. Barr, 147 Ky. 549, 144 S. W. 755; 17 C. J. 283; National Casket Co. v. Powar, 137 Ky. 156, 125 S. W. 279; Shields v. Rowland, 151 Ky. 140, 151 S. W. 408; McHenry Coal Co. v. Sneddon, 98 Ky. 684, 34 S. W. 228; Louisville R. Co. v. Ellerhorst, 129 Ky. 142, 110 S. W. 823; Sherman v. Dutch, 16 Ill. 283. The court erred in rejecting evidence of tests theretofore made, and in rejecting an offer to make tests in the presence of the jury, which did show, and would have then shown, that the mixture taken was entirely harmless, and could not, by any possibility, have inflicted the horrible burns 1 Wigmore, Ev. § 445; Mussellam v. Cincinnati, N. O. & T. P. R. Co. 126 Ky. 500, 104 S. W. 337; Smith v. Middlesboro Electric Co. 164 Ky. 46, 174 S. W. 773, Ann. Cas. 1917A, 1164: Kohlhagen v. Cardwell, 93 Or. 610, 8 A.L.R. 11, 184 Pac. 610. The court erred in instructions assuming that a druggist is an absolute insurer, since he is liable only for negligence. 19 C. J. 778, 779; 9 R. C. L. § 704; Tombari v. Connors, 85 Conn. 231, 39 L.R.A. (N.S.) 274, 82 Atl. 640; Falkner v. Birch, 120 Ill. App. 281; Tremblay v. Kimball, 107 Me. 53, 29 L.R.A. (N.S.) 900, 77 Atl. 405, Ann. Cas. 1912C, 1215; Spry v. Kiser, 179 N. C. 417, 102 S. E. 708; Howes v. Rose, 13 Ind. App. 674, 55 Am. St. Rep. 251, 42 N. E. 303; Brown v. Marshall, 47 Mich. 576, 41 Am. Rep. 728, 11 N. W. 392; Fagan v. McRae, 169 N. Y. Supp. 577; Sutton v. Wood, 120 Ky. 23, 85 S. W. 201, 8 Ann. Cas. 894. Messrs. Heavrin & Martin for appellee. Clarke, J., delivered the opinion of the court: From an attack of influenza, plaintiff, Mrs. Flora Howard, was confined to bed for four or five days in January, 1919, after which she resumed her household duties, as well as her duties as assistant to the superintendent of schools for Ohio. county. She was not fully recovered, however, and continued to be (201 Ky. 346, 256 S. W. 705.) extremely nervous and considerably run down, until in April she developed neuralgia. Her physician then prescribed as a sedative a mixture of 2 ounces of penta bromide and one ounce of paraldehyde. The defendant drug company, in filling the prescription, by mistake substituted a solution of formaldehyde for paraldehyde, and plaintiff took a teaspoonful of the mixture diluted in a small quantity of water as directed on the bottle and in the prescription. For injuries alleged to have resulted therefrom, she instituted this action, and recovered a judgment for $3,000, of which $2,000 was allowed as compensatory damages, $700 for hospital and medical expenses, and $300 as punitive damages. The chief grounds of complaint by the defendant are that punitive damages were not recoverable; that the verdict is excessive in the amounts allowed as compensation and for medical and hospital expenses; and that the court erred in several rulings with reference to the pleadings and evidence, and in the instructions given. Plaintiff alleged gross and wanton negligence. The instructions authorized the jury to award compensatory damages, including hospital fees and medical expenses, if the defendant "failed to exercise slight care" in filling the prescription; and to allow punitive damages in addition, if the defendant "was grossly negligent in so doing." There was no reference in the instructions to wanton or wilful or reckless negligence, and gross negligence was defined as the "failure to exercise slight care." It is, therefore, at once apparent that both compensatory and punitive damages were predicated upon precisely the same degree of negligence. -when punitive and allowed. Where in tort liability for compensation is based upon a want of ordinary care or ordinary negligence, it is the rule in this state, and many others, to allow smart money in addition if the negligence is gross, but in no case that we have been able to find are both compensatory exemplary damages predicated upon the same degree of negligence, unless it be our own cases of this particular kind upon which alone appellee relies. In the first of these (Fleet v. Hollenkemp, 13 B. Mon. 219, 56 Am. Dec. 563), this court held that the rules in regard to the degree of negligence necessary to exempt a party from responsibility in certain cases do not apply to a druggist in dispensing dangerous drugs, that for all practical purposes the liability of a druggist in such sales is that of an insurer, and that the damages "may be more or less exemplary or otherwise, as the circumstances of aggravation or extenuation characterizing each particular case may reasonably require" in the sound discretion of the jury, depending upon the nature and extent of the injury done and the manner in which it was inflicted, whether by negligence, wantonness, or with or without malice. Even if this extreme case be accepted for our guidance, and which, in making of the druggist an insurer, is out of line with all the cases examined, we submit that it does not warrant an instruction to award both compensation and punitive damages for the same degree of negligence, but only that liability for the former does not depend upon the degree. The next case is Smith v. Middleton, 112 Ky. 588, 56 L.R.A. 484, 99 Am. St. Rep. 308, 66 S. W. 388, where a drug clerk sold morphine for calomel, resulting in the death of a five-year-old child. This case holds that the highest degree of care was required, that the sale was gross negligence "of an exaggerated form," and such as to authorize the infliction of smart money; that the court erred in refusing "an instruction defining 'gross negligence,'the one asked for,-and predicating upon it another permitting the plaintiff to recover punitive damages if the jury find such negligence to exist." The instruction permitting compensation is approved, but not copied in the opinion. By reference to the record in that case, we find that compensation was predicated upon ordinary negligence, and, this being true, it was not error, but in accord with the general rule in tort cases in this state, to allow punitive damages for gross negligence. The last case (Sutton v. Wood, 120 Ky. 23, 85 S. W. 201, 8 Ann. Cas. 894) holds that the employment of a clerk, not a registered pharmacist, who sells strychnine in violation of a statute, renders the employer prima facie guilty of negligence and liable for damages occasioned thereby, and that a druggist is required. to exercise the highest degree of care for the safety of the public dealing with him. The subject of punitive damages is not discussed, so this case has no direct bearing upon that question. It would be difficult from these cases, as it has been found on principle by other courts as well as this, to define the different degrees of negligence that allow the one or both kinds of damages, but it is entirely clear, even from these cases, that both kinds of damages are not recoverable for the same degree of negligence. And, while it is stated in all of these cases that a druggist, in dispensing poisonous drugs, must exercise the highest degree of care, as indeed he must in order to exercise ordinary care under the circumstances, in only one of them was this care defined by an instruction (the Smith-Middleton Case), and it was there defined as such care as ordinarily skilful and prudent men usually exercise in like business and under similar circumstances, which is, of course, in legal terminology, ordinary care. Druggist-care required. Upon this question it is stated, in 9 R. C. L. 704, upon authority of many cases cited in the notes, that "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, and in determining what degree of prudence, vigilance, and thoughtfulness will fill the requirements of 'ordinary care' in compounding medicines and filling prescriptions, it is necessary to consider the poisonous character of many of the drugs with which the apothecary deals, and the grave and fatal consequence which may follow the want of due care. For people trust not merely their health, but their lives, to the knowledge, care, and prudence of druggists, and in many cases a slight want of care is liable to prove fatal to someone. It is therefore proper and reasonable that the care required shall be proportioned to the danger involved." In 19 C. J. 778, upon authority of practically the same cases, the rule is stated thus: "The legal measure of the duty of a druggist toward his patron is properly expressed by the phrase 'ordinary care' when considered with reference to that special business. As applicable to such business it calls for a degree of vigilance and prudence which is commensurate with the dangers involved, and this has been defined to be the highest practicable degree of prudence, thoughtfulness, and vigilance, and the most exact and reliable safeguards consistent with the reasonable conduct of the business. in order that human life may not constantly be exposed to the danger flowing from the substitution of deadly poison for harmless medicine. But he need not use extraordinary care or a higher degree of care than is ordinarily used by other qualified druggists." The instructions approved by this court in Smith v. Middleton, supra, are in accordance with the above (201 Ky. 346, 256 S. W. 705.) texts and the great weight of authority, and, as that is the more recent case from this court on the subject, and maintains the ordinary distinctions in the degrees of negligence authorizing compensatory and punitive damages, we think it should be followed, rather than the older case of Fleet v. Hollenkemp, supra, which makes of the druggist an insurer. Ordinary negligence was defined in the Smith Case as "the failure to exercise such care as ordinarily skilful and prudent men usually exercise in like business and under circumstances similar to those in this case." If the first instruction in this case had been based upon ordinary negligence thus defined, as upon both principle and authority we think it should have been, there would have been no error in allowing punitive damages upon gross negligence, which was correctly defined. This error, however, was favorable rather than prejudicial to the defendant, another trial this instruction should be corrected to avoid the possiblity of any misunderstanding about the matter. Complaint is also made of the court's refusal to let the defendant plead or prove that, owing to a severe epidemic then prevailing in the community, the heavy demands made upon defend- -epidemic as take. ant and its inabil- excuse for mis- clerks. But it was competent in mitigation of punitive damages, although not necessarily de- -mitigationterminative of that exhaustion of question. If, as this evidence tends to prove, defendant, in a possibly unwise attempt, was nevertheless endeavoring, beyond the strength and endurance of all the help it could then obtain, to supply its customers with needed medicines during an epidemic, it seems only reasonable and just that that fact ought to be taken into consideration in fixing the amount, at least, of smart money that ought to be inflicted upon it, over and above compensation for any injury plaintiff sustained. We are therefore of the opinion that the court erred in refusing to admit such evidence, under proper admonition as to its purpose, and that this error was prejudicial. Another complaint is of the refusal to permit a test to be made in the presence of the jury, and the rejection of evidence showing the result of like tests theretofore made, to prove that the mixture taken by plaintiff could not have produced the effects she and several of her witnesses testified it did produce. There is no dispute about the mixture taken; the entire controversy being about its effect. Several ex |