
    Porter J. Willson, Appellant, v. Faxon, Williams & Faxon, Respondent.
    Fourth Department,
    May 4, 1910.
    Contract — sale of medicine by druggist — breach of warranty — failure to supply drug asked for — new trial — right to incidental damages.
    A druggist is not legally responsible for any unintentional consequential injury resulting from a lawful act unless failure to exercise due and proper care be . shown.
    Where the plaintiff asked a druggist’s clerk for cascara segrada and he sold him a proprietary medicine labeled “Kascara Kathartios,” telling him that it was cascara, although, in fact, it was not, an action will not lie for breach of warranty to recover damages for illness resulting to plaintiff’s wife from taking the medicine.
    In an action to recover substantial damages, a. new trial will not be ordered to enable plaintiff to recover nominal damages which are a mere incident .to the chief claim.
    Appeal by the plaintiff, Porter J. Willson,, from a judgment of the Supreme Court in favor of the defendant, entered in the'office of the elerk of the eounty of Erie on the 22d day of June, 1909, upon tlie dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Erie Trial Term.
    
      Charles Newton, for the appellant.
    
      Adolph Rebadow, for the respondent.
   Spring, J. :

The' action is for breach of contract by the husband tó recover for medical services paid and loss of society of his .wife by reason of illness resulting from the taking of tablets sold to him by the defendant, a domestic corporation engaged in selling drugs and proprietary medicines in the' city of Buffalo.

The proof of the plaintiff tends to show that he applied to a clerk of the defendant for cascara segrada, a vegetable preparation, and the clerk sold him a box labeled “ Kascara Kathartics,” stating it was cascara, when in fact it was a combination of one-fiftli grain of calomel with senna and podophyllin, which are vegetable extracts. The plaintiff’s' wife took one of the tablets, which resulted in her serious illness.

I think the action for breach of warranty will not lie. (Beckwith v. Oatman, 43 Hun, 265; Allan v. State Stemnship Co., 132 N. Y. 91; Losee v. Buchcman, 51 id. 476; Brown v. Marshall, 47 Mich. 576; Thomas v. Winchester, 6 N. Y. 397.)

In Allan v. State Steamship Co. (132 N. Y. 91, supra) the plaintiff asked of the defendant’s physician on shipboard for five grains of quinine and was given calomel instead, which dose she took with serious results. She brought her action alleging that she relied upon the physician to give what she ordered and did not charge the defendant with negligence, and recovered. The Court of Appeals reversed the judgment of affirmance, and after reviewing the authorities determining the form of the action or nature of the responsibility of the defendant in actions of this kind, summed up its conclusion in this language : 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.” , '

The plaintiff claims "he was entitled in any event to recover the sum he paid for the tablets, and the price stated on the label is twenty-five cents. That item is not. made one of the charges in the complaint. - The action- is to recover substantial damages, and a new trial will not be ordered-to enable the plaintiff to recover -nominal'damages and which.are a mere incident to the chief claim. (La Rue v. Smith, 153 N. Y. 428, 433; Stephens v. Wider, 32 id. 351; Rambaut v. Irving Nat. Bank, 42 App. Div. 143.)

The judgment should be. affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  