Brown v. H. K. Mulford Company
| Decision Date | 20 December 1917 |
| Citation | 199 S.W. 582,198 Mo.App. 586 |
| Parties | R. F. BROWN, et al., (Plaintiffs), Respondents, v. H. K. MULFORD COMPANY, a Corporation, (Defendant), Appellant |
| Court | Missouri Court of Appeals |
Appeal from Christian County Circuit Court.--Hon. Fred Stewart Judge.
REVERSED.
Judgment reversed.
Barrett & Moore for appellant.
F. T Stockard and Hamlin, Collins & Hamlin for respondent.
The plaintiff, a farmer and stock raiser, sued and recovered judgment against the defendant, a manufacturing chemist, for causing the death of forty-nine of his hogs. The defendant is located at Philadelphia with branches or distributing offices at St. Louis, Kansas City and other large centers. It manufactures a large variety of chemical products and among them a remedy for hog cholera designated as the "Serum-Virus (Simultaneous or Double) Treatment." The defendant does a wholesale business only and sells this product to the Drug and Veterinary trade. The plaintiff claims that his hogs were killed by having this remedy administered to them. The medicine was sold to and administered by Dr. Winters, a local veterinary, though not licensed as such. The sale was made to Dr. Winters by a traveling salesman who took his order therefor and forwarded same to defendant.
It is alleged and admitted that defendant recommended this medicine as a remedy, or preventive rather, of hog cholera and prescribed the dosage and manner of administering same. The recommendation and prescription for its use is a general one being printed on the label of the bottles containing same and in circulars sent out with each bottle. The petition alleges that this hog cholera remedy was sold to Dr. Winters for use on the particular hogs of plaintiff with directions prescribed for administering it to such hogs, but the only evidence on this point is that Dr. Winters was practicing his profession, including that of vaccinating hogs for the cholera in that neighborhood, to the knowledge of the traveling salesman who took the order and that such traveling salesman knew of plaintiff's hogs and recommended to him the use of this remedy. Hog cholera was then prevalent in that neighborhood. It is not claimed that any such information accompanied the order and defendant received and filled the order in the general way of goods sold to a local dealer. Dr. Winters testified that he had no connection whatever with the defendant company; that he ordered this medicine to use in vaccinating plaintiff's or any hogs in his field of practice; that he sent in a number of orders for this remedy during the year from time to time, some of which were filled at the Philadelphia office and some at the Kansas City office; that he thinks he vaccinated as many as six thousand hogs that season. All the directions he had for using this medicine were the general directions accompanying each bottle. The plaintiff admits that he employed and paid Dr. Winters to administer this remedy to his hogs, Dr. Winters furnishing the medicine, though the defendant's traveling man was present, recommended the medicine and heard plaintiff talking over the terms, etc. This salesman was merely the general salesman of defendant's products of which the serum was one and was merely calling on the trade and taking orders for this and hundreds of other products sold by defendant.
The plaintiff also alleges in his petition that the said hog cholera remedy used in the manner prescribed by Dr. Winters was a deadly poison and was so known to the defendant; that defendant knew that said remedy or serum would, if administered as per directions furnished by defendant, poison and kill hogs instead of curing and preventing the disease of cholera, which fact of the highly dangerous and poisonous character of the serum the defendant negligently failed to divulge or make known to Dr. Winters or to plaintiff. The proof falls far short of sustaining this allegation. The only proof of the remedy being a deadly poison is that Dr. Winters administered the same to these hogs and in eight days thereafter they became sick and began dying and at the end of two or three months forty-nine of the fifty-nine treated were dead. Both plaintiff and Dr. Winters say that at the time of the treatment the hogs were apparently well and showed no symptoms of cholera. The hogs of a neighbor were treated by Dr. Winters about the same time and a large per cent of them also died. It was shown, however, that hog cholera was raging in that neighborhood--that doubtless being the reason for these hogs being treated--and that other herds of hogs treated in the neighborhood fared well and showed a small death rate. It is conceded that hog cholera is highly infectious, spreading from farm to farm, the germs beings carried by dogs, birds and animals and even persons walking from an infected district may carry same on their feet. As to defendant not disclosing to Dr. Winters the dangerous character of this remedy, we may say that such is disclosed on the labels of the bottles and the directions for using same; and besides this Dr. Winters as a veterinary and holding himself out as competent to use this remedy in treating this disease must be held to have known the natural and probable results. Dr. Winters as a witness for plaintiff does not claim any ignorance or lack of information in this respect.
It should be explained, as we learn from the evidence, that this hog cholera remedy is considerably like vaccination for the prevention of smallpox. The simultaneous or double treatment consists of making two injections of different kinds of serum into the flesh of the hog at or about the same time. The one is a poison, the other an antidote. Both of these are taken from the blood of hogs, the one from a hog that has the cholera and the other from a hog that has had it and recovered--an immune hog. The only manufacturing about it is to condense and properly preserve this blood for use. The blood or virus from the cholera infected hog contains the cholera germs and is disease producing. The purpose of injecting this is to give the hog the cholera and unless something is done to cure it or counteract the effects death will likely follow. The bottle containing this ingredient has on its label: After giving the dosage of various sized hogs this follows: "This product should be used only by qualified veterinarians. We guarantee that this product is carefully prepared, but we assume no responsibility for results following its use. The pigs from which this virus or virulent blood was obtained showed lesions of acute hog cholera only at post mortem. Virus should not be injected into hogs without full standard doses of Hog Cholera Serum Mulford, i. e., 20 c. c. for every fifty pounds of hog. If used without serum or with insufficient serum, it will produce hog cholera.
Hog Cholera Virus should only be administered in strict accordance with our printed instructions. Under no circumstances do we accept any responsibility, expressed or implied, as to the results of its use or sale. If the purchaser does not accept Hog Cholera Virus on the above terms it should be returned to us within five days." The serum which is given as part of the treatment is to cure or counteract the cholera virus. It is taken from the blood of hogs that have had the cholera and have become immune or hyper-immune from being infected a second or third time. This serum to be effective as an antidote must be injected before the hog has had time to become thoroughly infected with the virus and in practice is injected at the same time as the virus. The dosage of this is also given on the label and in the instructions for using this treatment we find:
Dr Winters, testifying for plaintiff, says that in giving this...
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