
    No. 916
    EDELSTEIN v. COOK
    Ohio Supreme Court
    No. 17813.
    Decided June 19, 1923
    SALES.
    Proof of sale by a druggist of an injurious drug by mistake instead of a harmless drug establishes a case of prima facie negligence entitling recovery unless presumption is rebutted. (For Official Syllabus, see below.)
    Attorneys — Scott & Bissell, Cleveland, for Edel-stein; Krueger & Pelton, Cleveland, for Cook.
   JONES, J.

Epitomized Opinion

Cook sued Edelstein et al, who operated a drug store, in Cuyahoga Common Pleas, alleging that he asked a clerk in the store for a pound of Epsom Salts and was given citric acid instead; that relying on its being Epsom Salts he swallowed a large spoonful of the acid, causing burns to his mouth, throat and stomach, followed by violent vomiting and severe henmrrhages. The court charged the jury that if th^®ound the facts as alleged by Cook to be true, he^mild recover. The jury returned a verdict for Cook, the court rendered judgment thereon, which was affirmed by the Court of Appeals. Edelstein contended that the court erred in not drawing a distinction 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. In affirming the judgment, the Supreme Court held:

There is no distinction in principle between the sale of a harmful and injurious drug, and a deadly one. The keeping and dispensing of deadly poison 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 official Syllabus, 26 Abs. 484, says:

“Where if is alleged that a drug clerk by mistake sold and delivered an injurious drug to a customer nstead of a harmless drug asked for, and the customer had innocently swallowed the former upon the reliance and belief that he was taking the latter, and was caused great pain and suffering thereby, a cause of action is stated authorizing recovery.”
“In such a case negligence is presumed; proof of the facts above stated establishes a case of prima facie negligence, entitling recovery unless such presumption is rebutted.”  