Central Law Journal.

ST. LOUIS, MO., APRIL 26, 1918.

IS THE QUESTION OF LEGAL ETHICS AN ECONOMIC QUESTION?

This question was answered affirmatively at the last meeting of the Alabama Bar Association by the report of its Central Council.

This is a startling admission for any representative agency of the bar to make. If it have any basis in fact it will be accepted with shame and with a set purpose on the part of every Jawyer who loves his profession to correct conditions.

The idea that morality in its general aspect is largely an economic virtue had its first public exploitation in the legislative investigations set on foot a few years ago to find out why so many young women became so easily the prey of the white slavers. At that time, it will be remembered that the idea was bitterly resented and it was pointed out that many girls who "went wrong' had never been in financial difficulties and that there was as a rule greater immorality among the middle and wealthy classes. than among the very poor. The general conclusion was that sex morality was question of education, environment and heredity, economic necessity being only a minor contributory cause.

a

Of course, it is quite possible, if one views the ethics of the bar as mere code of conventional rules, that economic necessity may constitute a very important factor in determining the causes for any alleged decline in professional morality, but that such necessity should be the controlling factor is quite unthinkable, and, if true, would constitute a reflection on the moral fibre of the men who enter the profession, or on the other hand, would prove that the standards of professional conduct are too severe and impractical under present conditions.

But, returning to the report of the Alabama Central Council, it is there said, after calling attention to a few cases where offending lawyers were disbarred by the court, that:

"After all, the number of disbarments must be relatively small as compared with the instances of malfeasance which must occur so

long as the number at the bar is too great for many capable members to make a good living at law a living at least as ample as that made by any skilled artisan in the neighborhood."

Realizing that this conclusion of the Council rests largely on proof of the existence of an economic crisis in the financial affairs of not a few, but of a large proportion, of practitioners, the committee refers to the reports of other bar associations and to discussions in the Educational Section of the American Bar Association since. 1910. The report then goes on to say:

"It has been asserted by New York lawyers speaking before the American Bar Association that the average yearly income of a New York lawyer is only $1000; and the Birmingham members of your council feel confident in asserting that the average professional income of the 370 lawyers recently listed by Mr. Alex. Troy, as practising the profession in Birmingham is nothing like so large as the average of $1000 estimated for New York; whereas the regular wages of a Birmingham plumber is $6 per day, and every coal miner or locomotive engineer can make at least as much in his calling."

It hardly needs any proof that there are too many lawyers. This fact is universally admitted. But there may be some hesitation on the part of many members of the bar in acquiescing in the deduction of the council's report that "the question of maintaining the purity of the bar is therefore primarily an economic question.”

Admitting, however, that economic necessity is not an unimportant contributory factor in professional delinquencies, we are prepared to accept with some minor qualifications the suggested solution of the Council to restrict the number of lawyers entering the profession. On this point the report says:

"Our position is that the only solution of the problem is to reduce the numbers of the Bar in future by closely restricting the right to get in, and then in the lapse of time the temptation to malpractice will disappear, and an occasional disbarment will be sufficient to warn those who do wrong for the mere love of gain, to pursue their ambition in some other calling."

Accepting, as we do most heartily, the suggestion of the Alabama Central Council of the extreme desirability of raising the entrance requirements of applicants for admission to the bar, our hope for improvement in professional conduct is not based on any humiliating admission that thereby the mere "temptation to malpractice will disappear," but that thereby the men of weak moral fibre who now come to the ranks of practitioners will be discouraged from entering a profession where the emoluments of practice are only for those who make the most thorough intellectual prep

aration.

A. H. ROBBINS.

NOTES OF IMPORTANT DECISIONS

ATTORNEY AND CLIENT-STATEMENT BY ATTORNEY AS MALICIOUS ATTACK ON COURTS.-Re Sherwood, 103 Atl. 42, decided by Pennsylvania Supreme Court, shows that an attorney was disbarred for stating in a case removed to a federal court for prejudice, in diversity of citizenship, that "the five judges of the Luzerne (Pa.) Court are so prejudiced that Stough (his client) could not get a fair trial in our (State) courts." The judgment of the lower court disbarring him was reversed, because such statement was held to be privileged.

The Supreme Court ruled that the fact that the statement was made in a case in a federal court interposed no obstacle to the proceeding for disbarment, but it was said that the statement was privileged. The Court said that "what he said was spoken in the course of a judicial proceeding and was relevant and pertinent to the subject or cause of the inquiry." Is this true?

This statement was not in form argumentative. It was an unequivocal statement of something as a fact. As such a statement it

could not be accepted by the court to which it was addressed. It could not add a jot or tittle to what the court needed in the way of information for disposition of the cause befre it. If that court gave it any value in this way, it exceeded its power. It, therefore, possessed no relevancy or pertinency to the subject or cause of inquiry before the court.

The Supreme Court thought that there was here a question of "bad taste" and such is not a test in this inquiry. But we think, that the rule that counsel act contrary to professional ethics, when they undertake to state facts as facts, instead of employing argument as argument, is based on something more than taste. It is unethical to do this, because it is usurpation of the role of a witness. It is the interjection of irrelevancy in a cause, and we think the Pennsylvania court failed to utilize an excellent opportunity to characterize as it should have characterized-an abuse by coun

sel of a privilege conferred on attorneys in

appearing for clients. Instead of doing away with this abuse, it helps to enthrone it.

MARRIAGE-ANNULMENT JN COURTS OF ANOTHER STATE FOR CAUSE NOT CONTRARY TO ITS POLICY.-The case of Kitzman v. Kitzman, 166 N. W. 789, decided by Supreme Court of Wisconsin, is quite remarkable for its many angles concerning its validity at the place of performance, regard for that validity in another State and conformity with policy in the latter State in an action for annulment being involved.

It appears that all the parties lived in Wisconsin and there made application for a marriage license. This being refused they went over to Minnesota where they obtained a license and there a ceremony of marriage was performed, they returning to Wisconsin the same day, and living together as man and wife. At the time the husband had been declared an epileptic from excessive drinking and a guardian was appointed for him. Wisconsin law provided that no insane person or idiot should be capable of contracting marriage, and Minnesota law forbade marriage where either party is epileptic, feeble minded or insane. The alleged wife brought an action in Wisconsin to confirm the marriage, the husband and his guardian being made defendants. The guardian denied validity of the marriage and asked for affirma. tive relief and that it be declared void. Plaintiff had judgment in the trial court, and this the Supreme Court reversed and gave the affirma tive relief prayed for. The action begun by the wife was as by statute of Wisconsin in

cases where validity of marriage is denied or disputed.

The court said: "The trial court should have declared that the marriage ceremony

* was against the prohibition of the Minnesota statute; was contrary to the public policy of that State; was entered into after concealment or misrepresentation of a material fact had induced the proper official of that State to issue a requisite marriage certificate, and that such violations of the public policy and statutes of Minnesota were of such nature that the pretended ceremony could create no matrimonial status entitled to be recognized as such within the public policy of this State, and said attempted marriage therefore should have been declared null and void."

It is to be stated also that the defendant husband was opposed to the defense set up by his guardian and wanted the Minnesota ceremony confirmed and the relationship of marriage continued. This was thought not to hinder the rendition of the decree that was made, because of the power of the State over the relationship, independently of the wishes of the immediate parties thereto.

If common law marriage is recognized in Wisconsin, the ceremony in Minnesota ought to have been deemed merely an incident and not material. And further, the proof manifest of an attempt to evade Wisconsin officers for their refusal to perform the ceremony ought to have accentuated the view that common law marriage should have its ordinary effect.

Furthermore, it was claimed that the husband was not an epileptic at the time the ceremony was performed. The lower court so found as matter of fact, and the court admits that epilepsy may not be permanent, but says it is a serious mental disease which may injure posterity. But Wisconsin law does not bar an epileptic from marrying, but only insanes.

It seems to us, that this case ought to have been ruled on the theory of the parties being residents of, and domiciled in, Wisconsin, and the resort to Minnesota was matter more incidental than substantial. The husband and wife holding themselves out as married and desiring to continue so to do should have controlled, especially as there was no policy in Wisconsin avoiding marriage for epilepsy.

REMOVAL OF CAUSE OF ACTION-TEST IN SUITS UNDER FEDERAL EMPLOYERS' LIABILITY ACT AFTER VERDICT.-In Northern Trust Co. v. Grand Trunk Western Ry. Co., 118 N. E. 986, decided by Illinois Supreme Court, the interesting question asises as to

question of removability of an action from a state to a federal court, when raised upon motion to remove or upon arrest of judgment.

The declaration in this case stated a cause of action under State law and there being requisite diversity of citizenship it was subject to removal. Upon the trial it was not shown that plaintiff was engaged in interstate commerce, and the case remained as declared upon.

The court in speaking of a prior case in which a demurrer was interposed said: "In that case the question of the sufficiency of the declaration arose on a motion in arrest of judg.. ment, which was overruled by the trial court. The declaration alleged that the defendant has engaged in interstate commerce, but did not allege that the plaintiff was so engaged at the time of his injury. The court held, in substance, that, if tested by demurrer, the declaration might properly have been subject to the objection, but after verdict the rule by which pleadings are construed against the pleader is reversed, and anything necessary to be proved which may fairly be alleged will be regarded as alleged." In the instant case the declaration showing a cause subject to removal and the proof corresponding thereto, application of the ruling in the prior case above referred to was held erroneous and application for removal should have been granted on motion timely made, and the trial of the cause did not change the situation.

LIABILITY OF DRUGGIST FOR NEGLIGENCE IN SALE OR COMPOUNDING OF DRUGS.

Generally, as to Duty and Liability.The duty owed by druggists to their patrons is to exercise ordinary care. This, however, is ordinary care with reference to the particular business in question, and is fixed in view of the probable results of negligence. The care required of every person is always commensurate with the dangers involved. It is necessary, in order to establish the required degree of prudence, vigilance, and thoughtfulness, to consider the poisonous character of so many of the drugs with which the apothecary deals, and the grave and fatal consequences which may

follow the want of due care. The general customer ordinarily has no definite knowledge concerning the numerous medicines, but must rely implicitly upon the druggist, who holds himself out as having the peculiar learning and skill necessary to a safe and proper discharge of the duty legally required of him.

"Ordinary care with reference to the business of a druggist must therefore be held to signify the highest practicable de'gree 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 poisons for harmless medicine."

"All the authorities agree, and the very necessities of the case require, that the highest degree of care known to practical men must be used to prevent injuries from the use of drugs and poisons. It is for these reasons that a druggist is held to a special degree of responsibility. The care must be commensurate with the danger involved. The skill employed must correspond with that superior knowledge of the business which the law requires. The same rule that applies to the common carrier of passengers, and for the same reason -that is, that the life and safety from bodily harm of a passenger is at hazard, and his security due to the care and skill of the carrier alone, and under circumstances where the passenger is powerless to protect himself-applies to the druggist. So, too, the life and health of a customer at the druggist's counter is at hazard, and he is equally dependent for security upon the care and skill of the druggist, and is equal-. ly powerless to protect himself."a

"In applying his knowledge and exercising care and diligence, the druggist is bound to give his patrons the benefit of his best judgment; for even in pharmacy there is a class of cases in which judgment and discretion must or may be exercised. The druggist is not necessarily responsible for the results of an error of judgment which

(1) Tombari v. Connors, 85 Conn. 231, 82 Atl. 640, 39 L. R. A. (N. S.) 274; Tremblay v. Kimball, 107 Me. 53, 77 Atl. 405, 29 L. R. A. (N. S.) 900, Ann Cas. 1912C 1215; Falkner v. Birch, 120 Ill. App. 281; Knoefel v. Atkins, 40 Ind. App. 428.

(1a) Knoefel v. Atkins, 40 Ind. App. 428.

is reconcilable and consistent with the exercise of ordinary skill and care. He does not absolutely guarantee that no error shall ever be committed in the discharge of his duties. It is conceivable that there might be an error or mistake on the part of a qualified druggist which would not be held actionable negligence."2

He is required to possess a reasonable degree of knowledge and skill with respect to the pharmaceutical duties which he professes to be competent to perform. He is not required to possess the highest degree of knowledge and skill to which the art and science may have attained, nor to have the skill and experience equal to the most eminent in his profession. That reasonable degree of learning and skill which is ordinarily possessed by other druggists in good standing, is the standard of his qualifications.3

It has been declared to be the duty of druggists to know the properties of the medicines they sell, and to employ such persons as are capable of discriminating when dealing out medicines to customers.

If the druggist was negligent he is liable, whether or not he was registered.

It has been held that the negligent sale of poison is an indictable offense at common law as well as under statute."

In a case where the druggist gave a customer acetanilid when he called for phosphate of soda, and the customer was injured thereby, it was held that negligence would be presumed; the rule res ipsa loquitur applying."

Liability for Negligence of Clerk.—It is elementary that the master who undertakes to perform a service is liable for the negli

(2) Tremblay v. Kimball, 107 Me. 53, 77 Atl. 405, 29 L. R. A. (N. S.) 900, Ann. Cas. 1912C 1215.

(3) Tremblay v. Kimball, 107 Me. 53, 77 Atl. 405, 29 L. R. A. (N. S.) 900, Ann. Cas. 1912C 1215.

(4) Smith v. Hays, 23 Ill. App. 244; Brown v. Marshall, 47 Mich. 576; Fleet v. Hollenkemp, 13 B. Mon. (Ky.) 219.

(5) Coughlin v. Bradbury, 109 Me. 571, 85 Atl. 294.

(6) Thomas v. Winchester, 6 N. Y. 397.
(7) Knoefel v. Atkins, 40 Ind. App. 428.

gence of his servant who, when in the scope of his employment, is performing the services undertaken. This is true as well when the servant is a man of great skill and ability and is performing an act which requires peculiar technical knowledge, as when the servant is a man of no special skill and is doing work of the most ordinary kind. The rule is applicable to a druggist and his clerk.$

In a case in which the defendant sought to escape liability on the ground that his clerk was a duly licensed pharmacist, the Court said: "The fact that Cutner, the defendant's clerk who compounded the prescription in question, 'was a competent druggist of experience,' does not relieve the defendant from a claim for damages for injuries sustained on account of negligence of his clerk. The most skilful and competent may be, and human experience teaches us will be, sometimes negligent. Hence the fact that one is skilful and competent may prove that he will generally be more careful than the unskilful and incompetent; but it has no tendency to prove due care on a particular occasion.' ”’›

The fact that a druggist, in compliance with a statute, employs a competent and registered pharmacist, does not relieve him. from liability for such employe's negligence.10

Where a clerk supplied an undiluted form of trikresol, when a one per cent. solution was prescribed, and the action was founded on these facts, it was immaterial that the clerk went further and applied the same to plaintiff's arm, or whether in so

(8) Tombari v. Connors, 85 Conn. 231,82 Atl. 640, 39 L. R. A. (N. S.) 274; Horst v. Walter, 53 Misc. (N. Y.) 591; Goodwin v. Rowe, 67 Ore. 1, 135 Pac. 171, Ann. Cas. 1915C 416; Moses v. Mathews, 95 Neb. 672, 146 N. W. 920, Ann. Cas. 1915A 698; McCubbin v. Hastings, 27 La. Ann. 713; Norton v. Sewall, 106 Mass. 143; Smith v. Hays, 23 Ill. App. 244.

(9) Tombari v. Connors, 85 Conn. 231, 82 Atl. 640, 39 L. R. A. (N. S.) 274.

(10) Burgess v. Sims Drug Co., 114 Ia. 275, 6 N. W. 307, 54 L. R. A. 364, 89 Am. St. Rep. 359.

doing he was acting in the scope of his employment in so applying it.11

Drug for Particular Purpose. The purchase of a drug for a particular purpose is not the equivalent of purchasing a particular drug. In the former instance the druggist impliedly represents that the drug is suitable for that purpose. So where plaintiff stated to defendant's drug clerk that he wanted to purchase "ten cents worth of corrosive sublimate to apply to the body to kill lice," and the clerk prepared it for that purpose, and the solution

proved to be so strong that it caused severe injury, the defendant was held liable therefor. Such case was held analogous to those where a harmful drug is sold for a harmless one.1 12

Failure to Label Poison-Contributory Negligence of Patron.-Plaintiff, a farmer, who at times practiced veterinary surgery, went to defendant's drug store and purchased a bottle of castor oil and some Rochelle salts, which he himself desired to take, and some sulphate of zinc to make a wash to be applied to a colt's foot. The salts and sulphate of zinc were wrapped in separate packages, and the latter was then attached to a bottle containing the oil by a rubber band. When plaintiff reached home, he placed the bottle and the package of sulphate of zinc, the two being still attached, on a shelf in his room, and the other package, containing the Rochelle salts, he placed on a shelf in a cupboard with medicine used by him in his veterinary work. A few days later, plaintiff desired to take a dose of the salts and his wife undertook to prepare the same for him. She used the sulphate of zinc, which was still attached to the bottle of castor oil, and plaintiff was made ill from taking the same. A statute required the druggist to label poisons, and there was evidence that there was no label on the sulphate of zinc, al

(11) Goodwin v. Rowe, 67 Ore. 1, 135 Pac. 171, Ann. Cas. 1915C 416.

(12) Goldberg v. Hegeman & Co., 127 App. Div. 312, 111 N. Y. Supp. 679.