American Cyanamid Co. v. Fields

• Decision Date: 11 May 1953
• Docket Number: No. 6567.,6567.
• Citation: 204 F.2d 151
• Parties: AMERICAN CYANAMID CO. v. FIELDS.
• Court: U.S. Court of Appeals — Fourth Circuit

204 F.2d 151 (1953)

AMERICAN CYANAMID CO. v. FIELDS.

No. 6567.

United States Court of Appeals Fourth Circuit.

Argued April 16, 1953.

Decided May 11, 1953.

W. T. O'Farrell, Charleston, W. Va. (G. J. Triplett and Jackson, Kelly, Morrison & Moxley, Charleston, W. Va., on the brief), for appellant.

Martin C. Bowles, Charleston, W. Va. (L. F. Poffenbarger, Charleston, W. Va., and William H. Hazlett, St. Albans, W. Va., on the brief), for appellee.

Before PARKER, Chief Judge, DOBIE, Circuit Judge, and HUTCHESON, District Judge.

DOBIE, Circuit Judge.

This is an appeal from a judgment of the United States District Court for the Southern District of West Virginia, entered upon a jury verdict in favor of the plaintiff in an action to recover damages for the loss of a flock of pullets. The loss was alleged to have been caused by the negligence of the defendant, American Cyanamid Company, in the preparation of a poultry medicine with which plaintiff treated his flock. The jury returned a verdict for plaintiff and fixed his damages at $6,000.00.

In March, 1951, the plaintiff, a poultry farmer of some twenty years experience, purchased 2,900 white leghorn pullets which he kept in six, separate compartments of one of his chicken houses. This house was a two-story structure having three compartments on each floor so arranged that the chickens of one compartment could not intermix with those of another. At this time the plaintiff also had on hand some 1,000 older chickens, which were housed in another structure some 300 feet away from that in which the pullets were kept.

For the purpose of worming his pullets, the plaintiff purchased five bottles of a poultry medicine, known as P. N. Powder Veterinary, on October 5, 1951. This preparation normally contains a combination of nicotine and phenothiazine, and is manufactured by the Lederle Division of the defendant company, one of the largest pharmaceutical and biological laboratories in the world. In accordance with the directions on the container, plaintiff mixed one bottle of the P. N. Powder with each of five 100-pound bags of mash feed. The mash feed was prepared for market by the Early and Daniel Company and sold to plaintiff by the Tuxedo Feed Company; neither of these two companies was in any way connected with the defendant.

On the afternoon of October 17, 1951, plaintiff distributed the five bags of feed so treated equally among the feeders in the six compartments of the chicken house. That same afternoon he also fed the same type of feed to his other flock of chickens but this feed had not been treated with P. N. Powder. Although the feed given to the older chickens did not come from the same bags as that which was treated and fed to the pullets, it was purchased from the same company and came from the same carload lot.

On the following morning the entire flock of pullets was sick — some of the pullets were already dead, others were dying. Plaintiff took three of them to the West Virginia State Laboratory at Charleston for examination. As these three were dead on arrival, an autopsy was performed by Dr. Hanley, the State Veterinarian. Although the kidneys and pancreas of each showed a chalky condition, there was no evidence of any infectious disease. On the autopsy report, Dr. Hanley indicated a possible diagnosis of Pullet's Disease or Bluecomb. He testified, however, at the trial that he suggested "the very remote possibility" of Bluecomb because of the absence of first hand symptoms and information.

During the day following the feeding, approximately 150 of plaintiff's pullets died, approximately 800 died during the next two days, and within thirty days of the feeding about 1,280 were lost. The remainder of the flock was thereafter substantially useless as egg producers. Throughout the 29 week period prior to October 17, the plaintiff had lost only 83 pullets of the original 2,900 he had purchased. No injurious effects were noted in the flock of older chickens which had been fed the untreated mash feed.

The plaintiff's evidence further tended to show that there was a difference in color between the P. N. Powder he purchased and that ordinarily sold, that overdoses of pure P. N. Powder would not cause death, that a chemical analysis of a sample of the powder he purchased revealed an absence of nicotine, that Pullet's Disease or Bluecomb is easily recognized and diagnosed in severe cases, and that certain symptoms of that...