
    Alice M. Allan, Resp’t, v. The State Steamship Co., Limited, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed March 8, 1892.)
    
    1. Negligence—Steamship companies—Medicines.
    Plaintiff as passenger on defendant’s steamer, at 8 f. m. on the second day out, applied to the ship’s doctor for some quinine and was given calomel instead, which caused sickness and permanent injury. Plaintiff gave evi- - dence by a passenger who applied for medicine the same evening, that he found the surgery where the medicines were kept in disorder and confusion, some of the bottles in the racks and some out. It was shown that the medicines were inspected at the beginning of the voyage by the port examiner and found properly packed and labelled. The statute required that they then shall be placed under the charge of the physician and be used at his discretion. Held, that such confusion or disorder was not such neglect of duty as to render defendant liable for the injuries sustained by plaintiff;
    2. Same.
    When the ship owner has employed a competent physician duly qualified as required by law and has placed in his charge a supply of medicine-sufficient in quantity and quality for the purposes required, which meet  the approval of the government officials, and has furnished to the physician-a proper place in which to keep them, it has performed its duty to its passengers, and errors and mistakes occurring in the use of the medicines-are not chargeable to the ship owners, whether the result of improper-arrangement in the care of the medicines or of error in' judgment.
    Appeal from a judgment of the general term of the second judicial department, which affirmed a judgment entered upon the verdict of a jury.
    This action was brought to recover for injuries alleged to have been sustained by the plaintiff upon a voyage from Glasgow to New York on the steamer “ State of Georgia, ” being the result of taking a dose of calomel which was furnished to her by the physician on board said steamer in response to a request for five grains-of “ quinine.”
    The material facts appear in the opinion.
    
      William D. Guthrie, for app’ít; M. L. Towns, for resp’t.
    
      
       Reversing 29 St. Rep., 288.
    
   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 propo.sition.

The first case was an action upon contract for breach of an implied warranty. The main question there decided related 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 labelling a deadly poison as a harmless medicine and sending it so labelled 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 liable 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; 5 St. Rep., 445.

In both of these cases a recovery was permitted by the trial -courts upon proof of the fact of a sále 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 skill 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 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. * . * * It 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 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 of 1855,”" and entitled “ An act to amend the law relating to the carriage of passengers by sea,” passed August 14, 1855, enacts:

1. (Sec. 41.) That “Every passenger ship shall * * * carry a duly qualified medical practitioner, who shall be-rated on. the ship’s articles.”

2. (Sec. 43.) “ The owner or charterer of every passenger ship shall provide tor 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.”

3. (Sec. 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 * * * as are required to be supplied by the last section, * •* * and shall have certified to the said emigration officer that the said ship contains a sufficient supply, etc.”

And by § 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.”

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 two-fold; First, to employ a duly qualified physician, and second, to provide a supply of medicines properly packed and labelled 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 labelling them, or left them open so that a mistake was very liable to occur.

As already stated, there was no evidence of a failure to provide an adequate and proper quantity of medicine of good quality, and none that they were not properly packed and labelled, or that the “ Surgery ” was not properly fitted up, or that it was an improper place for the purposes designated. All the evidence on that subject came from the defendant, and was to the effect that all the statute required was done, and that the government officers certified to its performance. The negligence charged, therefore, rests in the confusion in the “ Surgery ” and the disarrangement of the bottles. It was affirmatively shown, by defendant that between Glasgow and Greenock, during, the first two hours of the voyage, the medicines were inspected by the medical examiner of the-port of Glasgow, with the assistance of the physician, and that they were then properly packed and labelled and placed in the racks. The statute required that they shall then be placed under the charge of the physician, and be used at his discretion.

The medical examiner of the port left. the vessel about six o'clock on the evening of the first day of the voyage, and the plaintiff applied for medicine about eight o’clock in the evening of the following day, and the question presented, therefore, is whether testimony of confusion in the surgery, or disorder in the arrangement of the medicines, occurring after the vessel put to sea¡ and after the medicines were placed in charge of the physician, was evidence of such neglect of duty on the part of the defendant as to render it liable for such injuries as the plaintiff sustained. We think it was not. Any other construction must assume that the ship owner is bound to exercise some supervision over the physician in his treatment of the passengers and his árrangement of the medicine. But no officer on the ship is competent to do that. The very object of the statute is that a skilled professional man shall be on board the ship to attend the passengers in case of sea sickness and dispense the drugs and medicines. Can we hold that a sailor shall have supervision over the doctor, or that an unskilled man with no ability to tell one drug from another shall have authority over the skilled, experienced physician ? To so hold would nullify the law and put inexperience over experience, and ignorance where the law requires knowledge and professional skill.

When the ship owner has employed a competent physician, duly qualified as required by the law, and has placed in his charge a supply of medicine sufficient in quantity and quality for the purposes required, which meet the approval of the government officials, and has furnished to the physician a proper place in which to keep them, we think it has performed its duty to its passengers. That from that time the responsible person is the physician, and errors and mistakes occurring in the use of the medicines are not chargeable to the ship owner, and that no different rule is applicable to such mistakes as are the result of improper arrangement in the care of the medicines than to those which are the result of errors in judgment

The work which the physician does after the vessel starts on the voyage is his and not the ship owner’s.

It is optional entirely with the passengers whether or not they employ the physician. They may use his medicines or not as they choose. They may place themselves under his care or go without attendance as they prefer, and they determine themselves how far and to what extent they will submit to his control and treatment. The captain of the ship cannot interfere. The physician is not the ship owner’s servant doing his work and subject to his direction. In his department, in the care and attendance of the sick passengers, he is independent of all superior authority except that of his patient, and the captain of the ship has no power to interfere except at the passenger’s request. These views find support in Laubheim v. De K. N. S. Co., 107 N. Y., 229; 11 St. Rep., 469; and in O'Brien v. Cunard S. S. Co., 28 N. E. Rep. (Mass.), 266.

The first case arose before congress had legislated upon the subject, but it was said in the opinion that “if by law or by .choice the defendant was bound to provide a surgeon for its ship its duty to the passengers was to select a reasonably competent man for that office, and it is liable only for a neglect of that duty.” The Massachusetts case was decided upon a statute of the United States similar to that of Great Britain, and it was there said that the ship owners “ do their whole duty if they employ a duly qualified and competent surgeon and medical practitioner and supply him with all necessary and proper instruments, medicine and medical comforts and have him in readiness for such passengers as choose to employ him.”

We think that is the extent of the requirement of the statute in this case, and if there was any common law liability resting upon the defendant to make provision for the care and attendance. of its passengers when sick, it was no greater than that imposed by the statute.

These views lead to the conclusion that the evidence failed" to show the neglect of any duty which the defendant owed to the plaintiff, and the motion to dismiss the complaint should have been granted.

The judgment must be reversed.

Judgment reversed and new trial granted, costs to abide event.*

All concur.  