Ruden v. Hansen

Decision Date25 April 1973
Docket NumberNo. 55322,55322
Citation206 N.W.2d 713
PartiesEldon RUDEN, Appellee, v. L. R. HANSEN, Appellants.
CourtIowa Supreme Court

Gleysteen, Nelson, Harper, Kunze & Eidsmoe, Sioux City, for appellants and cross-appellee.

Kindig, Beebe, McCluhan & Rawlings, Sioux City, for appellee and cross-appellant.

Heard by MOORE, C.J., and MASON, LeGRAND, UHLENHOPP and McCORMICK, JJ.

MOORE, Chief Judge.

Defendant, Dr. L. R. Hansen, appeals from judgment on jury verdict for plaintiff in his action alleging malpractice by negligent vaccination of pregnant gilts. Plaintiff cross-appeals asserting the trial court erred in determination of the measure of damages. We reverse on both appeals.

In the fall of 1966 Plymouth County farmer, Melvin Bainbridge, decided to have a farm sale, including the sale of 67 pregnant gilts and 20 pregnant sows. In November or December 1966 he asked Plymouth County veterinarian, Dr. L. R. Hansen, to do whatever was necessary to get his animals ready for sale and transportation. He told Dr. Hansen the gilts had been bred and were due to farrow by March 7, 1967. Dr. Hansen was aware transportation regulations required certain vaccinations. In December he tested the gilts for brucellosis and vaccinated them for lepto and erysipelas. He decided to wait until January to vaccinate for hog cholera so the gilts would be further along in pregnancy. He vaccinated Bainbridge's gilts and sows with a modified live cholera vaccine on January 12, 1967. He thought this was the best way to qualify them for sale. Although the label on the cholera vaccine bottle stated the vaccine should not be used on pregnant sows, he had used it successfully on pregnant animals. Dr. Hansen testified such use was the best mothod and within good veterinary medical practice in the community.

Plaintiff, Eldon Ruden, bought the 67 gilts at Bainbridge's farm at public auction on January 12, 1967. He knew from a newspaper ad the gilts had been vaccinated and were due to farrow about March 7. He was not aware of when the gilts had been vaccinated. Within two days after purchase plaintiff trucked the gilts to his farm near Le Mars. They appeared to be in good condition.

The gilts started farrowing about a week after March 7. Several had only one, two or three live pigs. The normal litter is from eight to ten. Some had ten or eleven mummies--little dead pigs. Others were born alive but could not walk. Some were deformed. A number of the gilts just had after-birth. Many pigs had to be killed. Eighty lived to weaning time.

As a result of his loss plaintiff brought action against Bainbridge in division one of his petition for breach of warranty and in division two a tort action against Dr. Hansen, alleging negligence and malpractice. On trial the jury returned a verdict for Bainbridge and a $2000 verdict for plaintiff against Dr. Hansen.

Bainbridge is not involved in this appeal. Defendant Hansen assigns five errors which we consider infra. No claim is asserted Ruden is not a proper party plaintiff.

I. Defendant's first assigned error is the trial court erred in failing to sustain his motions for directed verdict and for judgment notwithstanding the verdict. The thrust of defendant's argument is that plaintiff failed to introduce sufficient evidence on the standard of care required and failed to establish a jury question on the alleged negligence of defendant.

As a veterinarian defendant was duty bound to bring to his service the learning, skill and care which characterizes the profession generally. In other words, the care and diligence required was that as a careful and trustworthy veterinarian would be expected to exercise. Morrison v. Altig, 157 Iowa 265, 267, 138 N.W. 510, 511; Barney v. Pinkham, 29 Neb. 350, 45 N.W. 694; Kerbow v. Bell, Okla., 259 P.2d 317, 319, 38 A.L.R.2d 500; 41 Am.Jur. Physicians and Surgeons, § 88, page 207; Annot. 38 A.L.R.2d 503, 'Veterinarian's Liability for Malpractice.'

We have omitted reference to the veterinarian's duty 'in the neighborhood or vicinity' as used in Morrison v. Altig, supra, first because all testimony in the case at bar refers to duty by veterinarians practicing in Plymouth County and secondly because we no longer approve that limitation. The standard of care practiced in the particular community or like communities may be one of the elements to be considered but it is not conclusive. We are convinced the correct standard of the veterinarian's care should be held to that exercised generally under similar circumstances. Such is the rule as applied to hospitals in the care of patients. Kastler v. Iowa Methodist Hospital, Iowa, 193 N.W.2d 98, 101, 102; Dickinson v. Mailliard, Iowa, 175 N.W.2d 588, 596.

We return to the evidence as shown by the record. About March 15 plaintiff visited the office of Dr. John R. Conley, Le Mars, Plymouth County veterinarian and related his experience. He was given medicine to treat his sows. Dr. Conley's associate went to plaintiff's farm two days later. Dr. Conley was given a report but did not see plaintiff's animals until April 13. He drew blood for testing to eliminate two possible causes of plaintiff's problem. He was not qualified to run the brucellosis and leptospirosis test. Therefore he sent blood samples to the Diagnostic Laboratory at Iowa State University at Ames. Admission of the report of that test gives rise to one of defendant's assigned errors which we will discuss infra.

Dr. Conley's qualifications as a member of the profession are not questioned. His testimony includes:

'All right now, Doctor, based upon your experience as a veterinarian, with a reasonable degree of certainty, do you have a reason for the cause of the difficulty in the farrowing of these gilts and these gilts' litters?'

Over defendant's objection the witness answered:

'Yes. My opinion was as previously stated that the fetal deaths, of stillborn pigs, malformation in the pigs, and the high death rate in the pigs that were born alive, were the result of use of modified live vaccine, hog cholera vaccine, in the first part of their pregnancy.'

He also testified he felt any violation of the contraindication enclosed with the vaccine or biological product is not proper and that use of modified live vaccine is not proper on bred animals. He further opined 'the only proper procedure is serum.'

Although Dr. Conley was not asked directly the standard of care to be exercised generally in vaccination of pregnant gilts we believe his testimony was sufficient to establish a jury question on that element of plaintiff's case.

Defendant also contends he was entitled to a directed verdict on the ground plaintiff failed to prove proximate cause. The testimony of Dr. Conley set out above sufficiently establishes a jury question on the causal connection of defendant's alleged negligence and plaintiff's loss. Dr. Conley's testimony on cross-examination, that there are other possible causes of such problems as experienced by plaintiff, was not enough to negative as a matter of law his testimony that plaintiff's problems were the result of defendant's use of modified live vaccine.

Generally questions of negligence, contributory negligence and proximate cause are for the jury; it is only in exceptional cases that they may be decided as matters of law. Rule 344(f)(10), Rules of Civil Procedure. The record before us does not establish such an exceptional case. The trial court did not err in overruling defendant's motions for directed verdict and for judgment notwithstanding the verdict.

II. Defendant's second assigned error is the trial court erred in allowing the witness William Mills to state his opinion as to the cause of his problem with the 20 pregnant sows which he had bought at the Bainbridge auction sale on January 12, 1967. Defendant had vaccinated the sows that day in the same manner as the gilts. At farrowing Mills had a similar experience with his pigs as that of plaintiff.

After stating his experience with his sows Mills testified he operated a 240 acre farm on which he fed 500 to 600 head of hogs per year. He was then asked: 'Do you know, of your own knowledge--and answer yes or no--what the problem was?' He answered, 'Yes' and then was asked, 'What was that problem?'

Defense counsel objected to the question 'as calling for an opinion and conclusion of the witness, without proper foundation having been laid as to the qualifications of this witness to speak as to what the problem was.' The objection was overruled and Mills answered, 'I felt that this was not the procedure to be followed was to vaccinate with a modified live virus into a pregnant animal.'

We have recently reviewed at length the legal principles involved regarding admission of opinion testimony in Ganrud v. Smith, Iowa, 206 N.W.2d 311 (filed March 28, 1973) and Fischer, Inc. v. Standard Brands Inc., Iowa, 204 N.W.2d 579. Repetition is unnecessary. It is not enough that a witness be Generally qualified in a certain area; he must also be qualified to answer the particular question propounded. Tiemeyer v. McIntosh, Iowa, 176 N.W.2d 819, 824; Karr v. Samuelson, Inc., Iowa, 176 N.W.2d 204, 210. See also Jones on Evidence (6th ed.) § 14:2, page 583.

Mills' qualifications, if any, were indeed general. He said nothing concerning the length of time he had been feeding hogs, nor of any prior experience with the problem he experienced with his 20 sows. The showing of any knowledge of the proper method of vaccinating gilts or sows was entirely lacking. The inadequacy of Mills' qualifications is so manifest that no extended discussion is necessary.

The trial court committed reversible error in permitting Mills to express the opinion above set out.

III. Over defendant's objection that it was hearsay the trial court allowed Dr. Conley to testify as to results of the test conducted by the Diagnostic Laboratory at Ames. We agree with defendant's claim this was error.

Hearsay is a statement, other than one made by...

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