When the trip is for a sufficient time, the carriage contract by water includes sufficient and healthful food and water.' Under the congressional Act of 1882, requiring masters of vessels to provide tables and seats for passengers at regular meals, and denouncing a penalty for failure to do so, and making such penalty a lien upon the vessel, the vessel cannot be libeled for a fine for failure of the master to comply with the Act, until he has been fined or a penalty has been imposed upon him in a criminal prosecution for such failure. The libel cannot be maintained in the first instance.' But the duty cannot be released by charter contract."

A steamboat company is under no obligation to furnish a stateroom in exchange for tickets for berths bought and paid for by a passenger, upon an offer of the difference in price.*

While it is undoubtedly true that a person too ill to travel alone, cannot impose the duties of a nurse upon the carrier, but must provide for his own care and comfort, yet the carrier is required to act upon notice of a special disability, requiring some attention in entering or leaving the train, though not absolutely disabling the person transported. But the carrier is entitled to such notice." Of course rules of common humanity or of courtesy, if binding the carrier to certain personal attention, beyond that ordinarily given to women and children, to a sick or afflicted passenger, have their force outside of the law of common carriers.'

$86. Responsibility for Errors of Ship's Physician.

In a case decided March 8, 1892, by the Court of Appeals of New York, the action was to recover from a steamship company damages for the alleged negligence of the ship's physician in fur

Young v. Fewson, 8 Car. & P. 55; O'Carroll v. The Havre, 45 Fed. Rep. 764. The Sidonian, 38 Fed. Rep. 440.

The Prinz Georg, 23 Fed. Rep. 906.

4 Miller v. New Jersey S. B. Co. 58 Hun, 424.

Serier v. Vicksburg & M. R. Co. 61 Miss 8; Louisville, N. & G. S. R. Co. v. Fleming, 14 Lea, 128.

Foss v. Boston & M. R. Co. (N. H.) 11 L. R. A. 367; Louisville & N. R. Co. v. Crunk, 119 Ind. 542; Lucas v. New Bedford & T. R. Co. 6 Gray, 64; St. Louis, A. & T. R. Co. v. Finley, 79 Tex. 85; Sheridan v. Brooklyn City & N. R. Co. 36 N. Y. 39.

New Orleans, J. & G. M. R. Co. v. Statham, 42 Miss. 607.

nishing calomel to plaintiff when she requested quinine. The plaintiff's contention was that when she 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, cited in support of this contention, 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, also cited, 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 the appellate 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 labeling a deadly poison as a harmless medicine, and sending it so labeled 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 has been decided, however, in several states. In must of these cases a recovery was permitted by the trial courts upon proof of the fact of a sale 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 many cases the exception was sustained, the appellate courts holding that a failure on the

1Allen v. State SS. Co. 15 L. R. A. 166, 132 N. Y. 91; Van Wyck v. Allen 69 N. Y. 62; Thomas v. Winchester, 6 N. Y. 397.

'Brown v. Marshall, 47 Mich. 576, 41 Am. Rep. 728; Beckwith v. Oatman, 43 Hun, 265; Losee v. Buchanan, 15 N. Y. 476-488, 10 Am. Rep. 623; Carpenter v. Blake, 75 N. Y. 12; Morris v. Platt, 32 Conn. 85; Simonds v. Henry, 39 Me. 155, 63 Am. Dec. 611; Fleet v. Hollenkemp, 13 B. Mon.

part of the druggist or his clerk to exercise due care and skill must be proved. In the Michigan case it is said, "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 recalled which conflicts with the rule thus stated. 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.

Negligence of the defendant steamship company, it was said in an action for damages, therefore, being the foundation of the plaintiff's cause of action, the facts of the case must establish it to create a liability. The defendant was a common carrier of passengers, and the duty to use proper care towards passengers dis

abled or ill is elsewhere discussed.'

'Ante, § 67.

§ 87. Statutory Duty to Provide Qualified Physician.

The duty assumed in this respect by a steamship company is imposed upon it by the statute of Great Britain, under the laws of which it was incorporated. That statute known and recited 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: First. (§ 41.) That "every passenger ship shall carry a duly qualified medical practitioner, who shall be rated on the ship's articles." Second. ($ 43.) "The owner or charterer of every passenger ship shall provide for the use of the passengers a supply of medicine proper and necessary 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." Third.

for diseases

tion,

(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 secand shall have certified to the said emigration officer that the said ship contains a sufficient supply,"etc. And by section 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 in a late case' that the defendant, for the purpose of advertising its line, issued a prospectus, which con. tained 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

'Allen v. State SS. Co. 15 L. R. A. 166, 132 N. Y. 91.

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, it is said by the court, 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 duties 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 labeled, and suitable and necessary for diseases 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, it is said, 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 labeling 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 labeled, or that the "surgery"