Murphy v. Sioux Falls Serum Co.

GATES, J. This cause was before us upon a former appeal. 44 S. D. 421, 184 N. W. 252. Reference is made to that opinion. Upon retrial the jury again found for the plaintiff. From the judgment and order denying new trial, defendant appeals, The action is for damages for the death of plaintiff’s hogs from malignant edbma, alleged to have been caused by anti-hog-cholera serum manufactured by defendant. The evidence' showed that the veterinarian who administered the serum purchased it from1 defendant, of three serials, viz., A247, Bio, and B12. Plaintiff’s hogs, were treated in three pastures. It was in the east pasture only that any of plaintiff’s hogs died. The serials B-io and B12 were used in the east pasture. The serial B12 was not, but the serial' Bio was, used in the other pastures. Upon the [46] second trial the defendant showed' (to use the language of the former opinion) that the serum had been prepared according to the approved method of preparing serum, that it had been carefully prepared and properly tested, bottled, sealed, and labeled, and that all reasonable care had1 been exercised to prevent any poisonous or deleterious matter from entering into the same. The defendant also showed that the serum had been manufactured under the immediate supervision of an agent of the Bureau of Animal Industry of the Department of Agriculture. It showed that the tests made at the plant had never revealed the presence of the germ's of malignant edem(a in any serum there manufactured, and that it was a practical impossibility that such germs could have been in the serum, serial Bi>2, with which the hogs in'the east pasture were inoculated. The evidence of the veterinarian who administered the serum tended to show the possibility, if not the probability, that the germs of malignant edema got into the serum, or into the instrument, or into the wound, during the process of vaccination. As an instance showing a possible source of contamination, he poured1 the serum into a glass tumbler and operated the hypodermic needle from1 that, whereas a method less likely to result in contamination is to insert the needle in a cannula through the cork of the bottle. It is true that the veterinarian was permitted to testify that in his opinion1 it was the serum as it came to him from defendant that was contaminated. Upon cross-examination, however, he admitted that his only reason for his opinion, was that “I could not figure out any other way how it happened.” The witness had not shown himself 'competent to give the opinion, and he should not have been permitted to give it. Again, the government inspector in change of defendant’s plant testified that he had used this serial on test pigs at the plant, and that there was no showing of malignant edema from the use of it. Such inspector gave the following testimony relative to the bacillus, malignant edema: “This spore exists in dirt, feces of animals, in fact, in any place on the ground. The spore is long lived. It vegetates or grows only when it is excluded from the air and in deep puncture wounds. It does not grow in the blood stream of an animal and does not grow or vegetate in serum. This spore or bacillus [47] will grow if introduced into an animal through a deep wound. It is more likely to show on the serum side than on the virus side, for the reason that more tissue is displaced, and a larger amount is injected because of the inflammation which makes better media for the growth of the germ. 'Experiments have been carried on in connection of the isolation of the spore of this disease. It is 'Commonly known that the disease can be caused by the injection of sterile water in an animal if the germ is on the skin. The spore or bacillus lives in dirt and on the ground, and is carried around by animals or people. When a puncture wound is made into the muscle and the air is excluded, it starts to vegetate.” The record before us fails to reveal evidence of defendant’s negligence other than the death of the hogs. In Richards v. H. K. Mulford Co., 236 Fed. 677, 150 C. C. A. 9, an anthrax case, the court said: “With the failure of this contention, plaintiff’s case must wholly fail. Nothing remains to support it, save conjecture— and conjecture which, upon the whole, is essentially improbable. In our judgment, all reasonable men must agree that an inference of defendant’s fault cannot safely rest on such premises.” In Hollingsworth v. Midwest Serum Co., 183 Iowa 280, 162 N. W. 620, a hog, cholera case, the court said: . . “We think,’-therefore, that the circumstances which-we have here considered fall far short of sustaining a verdict either finding negligence of the defendant or that the alleged negligence was the pro-ximiate cause of the losses- complained of.” In Brown v. H. K. Mulford Co., 198 Mo. App. 586, 199 S. W. 582, a hog cholera case, the court said': “We might conjecture, therefore, judging merely from results, that these hogs alrea-dly had the disease in its incipient stages, and the serum administered after the additional injection of virus could not counteract the disease; or, judging merely from results, we might conjecture that Dr. Winters, however honest in -his beilef that he administered that remedy properly, made some mistake, misadventure, or miscalculation, as we know that administering too much of the virus or too little of the serum would result as this did. These are mere conjectures, of course, but so too, is it a mere conjecture that there was some negligence [48] in the preparation of the virus used. The mere fact that injury resulted from the use of this virus in the way it was intended to be used, is not sufficient to prove negligence in its manufacture. There must be evidence from which the negligence counted on is fairly and reasonably inferable. It is not enough to show accident and injury.” In Eagle Biological & Supply Co. v. Breed (Okl.), 215 Pac. 424, a hog cholera case, the court held (quoting from the syllabi) : “In a case where an action is brought against the manufacturer of anti-hog-cholera serum for negligence in-the manufacture and use of the serum which it is alleged resulted in the death of plaintiff’s hogs, there must be evidence by which the negligence counted on -is fairly and1 reasonably inferable. It is not enough to show accident and injury.” We are of the opinion that to permit the verdict to stand in this case would be contrary to' reason. It can, and does, rest only on conjecture and speculation. There is no conflict in the evidence in this case. We think that plaintiff failed to sustain the burden that was upon him to prove that negligence of the defendant was the proximate cause of "the injury. Inasmuch as this is the second trial, and the record excludes the probability of the obtaining of further evidence to show the contamination of the serum prior to its receipt by the veterinarian, and inasmuch as defendant, at the conclusion of the trial, moved for a directed verdict and later moved for judgment notwithstanding the verdict, we are of the opinion that the cause should be remanded to the trial court with directions to dismiss the action. Chapter 181, Laws 1921; Richmire v. Andrews & Gage El. Co., 11 N. D. 453, 92 N. W. 819. It will be so ordered.