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February 6, 1941

BOYD et al.

The opinion of the court was delivered by: CAMPBELL

CAMPBELL, District Judge.

This is a motion made by the defendant to dismiss the complaint on the ground that it does not set forth a claim upon which relief can be granted. In the alternative the defendant asks for summary judgment.

The plaintiff S. Rodman Boyd is the Pennsylvania administrator of the goods, chattels and credits of Ronald Mrozinski deceased who was nineteen months of age at the time of his death.

 The plaintiffs Walter Mrozinski and Jennie Mrozinski are the parents of the decedent.

 The complaint alleges that the defendant was the manufacturer and/or distributor of a product known as "Hollywood Fabric Cleaner", and prior to October 2nd, 1939, delivered to various persons in the City of Philadelphia, Pennsylvania, including a firm known as "Kitty Kelly", for sale and resale at retail a quantity of the said product "Hollywood Fabric Cleaner", and one package or container of said product was purchased by the plaintiffs Walter Mrozinski and Jennie Mrozinski from said firm known as "Kitty Kelly" and taken to their home.

 That on or about October 2nd, 1939, at said City of Philadelphia the said child Ronald Mrozinski drank a portion of the said product known as "Hollywood Fabric Cleaner", and became fatally ill and died on October 4th, 1939.

 That at all the times hereinafter mentioned the law of the State of Pennsylvania provided and at the time of the making of said complaint still provided, among other things, as follows, Act of May 17, 1917, P.L. Act No. 119, Section 17, Page 208, 35 P.S.Pa. § 901,

 "Section 17. Poisons. -- That a poison, in the meaning of this act of Assembly, shall be any drug, chemical, or preparation, which, according to standard works on medicine, toxicology, or materia medica, is liable to be destructive to adult human life, in quantities of sixty grains or less; or any mixture, compound, or preparation containing, in sixty grains or less, a sufficient quantity of any such drug, chemical, or preparation as to make the same liabel to be destructive to adult human life, if sixty grains or less were to be taken.

 "No person shall sell at retail or dispense any poison, except as herein provided, without affixing to the bottle, box, vessel, or package containing same a label, printed or plainly written, containing the name of the article, the word 'poison,' and the name and place of business of the seller; nor shall he deliver poison to any person without satisfying himself that the purchaser understands the poisonous nature of the article, and that such poison is to be used for legitimate purposes."

 The complaint further alleges that the said product so sold and delivered by the defendant under the name "Hollywood Fabric Cleaner" was a poison within the meaning of the last hereinbefore quoted Act, and that neither the label, nor the package, or container in which said product was contained bore the word "poison", or any other warning of the dangerous and perilous nature of the said product, and the ingredients therein contained, nor did the retailer of said product inform the purchasers thereof of the poisonous and perilous nature of said product and its ingredients.

 It seems obvious to me that the complaint in the action at bar is drawn on the theory that the defendant may be shown to have been negligent in that it failed to label the product "Hollywood Fabric Cleaner" as "poison" under the Pennsylvania Law, Act of May 17, 1917, P.L. Act No. 119, Page 208.

 Any right of action that plaintiffs may have is governed by the law of Pennsylvania. Spokane & Inland E.R.R. Co. v. Whitley, 237 U.S. 487, 35 S. Ct. 655, 59 L. Ed. 1060, L.R.A.1915F, 736.

 No affidavit of the parents is presented showing the circumstances under which the child drank any of the product.

 The very name of the product must have brought home to the parents the knowledge that it was a "fabric cleaner", and not something that their child should drink, and certainly the word "poison" even if it was carried on the package, or container, would not have deterred a nineteen month old infant from drinking the substance.

 To clearly understand the Pennsylvania statute here in question we should read not only the two paragraphs of Section 17 quoted in the complaint, and supra, but also the third paragraph of that Section, 35 P.S.Pa. § 902, which provides for "Sales of poison to be registered", and the whole Act. The title or preamble of the Act reads "An Act To regulate the practice of pharmacy and sale of poisons and drugs, and providing penalties for the violation thereof; defining the words 'drug' and 'poison;' and providing for the appointment of a board which shall have in charge the enforcement of said law, and the power to make rules and regulations for the enforcement of said law; and providing for the purchase of samples of drugs for determining their quality, strength, and purity."

 After that are the definitions of the terms, "pharmacy", "drug", "pharmacist" and "assistant pharmacist", found in Section 1, 63 P.S.Pa. § 291, followed by provisions relating to the Board of Pharmacy for registration and licensing of "pharmacists", and "qualified assistants".

 The purpose and intent of the Statute in question is to regulate and control the compounding of physician's prescriptions, preparing drugs, and dispensing them, or other products of the apothecary's calling, including poisonous substances, as an incident to the practice of pharmacy, and not to regulate, or control the sale of -- cleaning preparations.

 Section 13 of the Act, 63 P.S.Pa. § 319, reads as follows: "Section 13. That hereafter it shall be unlawful to sell drugs, medicines, or poisons at retail, or to compound physicians' prescriptions, or to conduct a pharmacy, or to practice as a pharmacist or assistant pharmacist, except in compliance with the provisions of this act of Assembly: Provided, however, That nothing in this act of Assembly shall be so construed as to interfere with students of pharmacy, or other employes in a pharmacy, from performing such duties as may be assigned to them by and under the supervision of a pharmacist or assistant pharmacist: And provided further, That the compounding of physicians' prescriptions, or the dispensing and selling of poisons at retail, shall not be permitted except under the strict supervision and in the presence of a pharmacist or assistant pharmacist.

 "Nothing in this act of Assembly shall be construed so as to prevent an authorized practitioner of medicine from administering or dispensing such drugs to bona fide patients as he or she shall deem necessary: Provided, however, That such drugs so administered or dispensed shall conform to the standards of strength, quality, and purity as fixed by the laws of this Commonwealth; nor prevent the sale or manufacture of proprietary medicines; nor prevent storekeepers from dealing in and selling commonly used household drugs when the same are offered for sale or sold in packages which have been put up ready for sale to consumers by pharmacists, manufacturing pharmacists, wholesale grocers, or wholesale druggists. Any person violating the provisions of this section shall be guilty of a misdemeanor, and upon conviction shall ...

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