Chandler v. Anchor Serum Co.

• Decision Date: 08 April 1967
• Docket Number: No. 44703,44703
• Citation: 426 P.2d 82,198 Kan. 571
• Parties: Ralph S. CHANDLER, Appellant, v. ANCHOR SERUM COMPANY, and Farmers Co-Op Elevator, and Kansas Farmers Union Serum Co., Appellees.
• Court: Kansas Supreme Court

Page 82

426 P.2d 82

198 Kan. 571

Ralph S. CHANDLER, Appellant, v. ANCHOR SERUM COMPANY, and Farmers Co-Op Elevator, and Kansas

Farmers Union Serum Co., Appellees.

No. 44703.

Supreme Court of Kansas.

April 8, 1967.

Syllabus by the Court

1. Rules relating to the application of the doctrine of res ipsa loquitur are stated and applied.

2. The doctrine of res ipsa loquitur has no application where the thing or instrumentality which caused the injury or damage is unknown or has not been shown.

3. As a matter of public policy an implied warranty of fitness is extended to include animal vaccine.

4. In the sale of animal vaccine by a manufacturer, distributor or retailer there is an implied warranty that the vaccine is fit for the ordinary purpose for which such product is used.

5. In an action by the purchaser against the manufacturer, distributor and retailer of 'CCS Bacterin' for immunization of cattle against Blackleg in which the purchaser claimed damages for calves that died of the disease after being vaccinated, the record is examined, and for the reasons more fully set out in the opinion, it is held, that plaintiff's evidence was insufficient to make out a claim on res ipsa loquitur, but plaintiff is entitled to present his claim for breach of an implied warranty against the manufacturer, distributor and retailer, and the district court is directed to grant a new trial.

Richard C. Byrd, Ottawa, argued the cause, and Ribert A. Anderson, James G. Kahler, Kenton C. Granger, and John L. Richeson, Ottawa, with him on the brief for appellant.

Richard O. Skoog, Ottawa, argued the cause, and Jlhn B. Pierson, Ottawa, was with him on the brief for appellee, Anchor Serum Co.

J. H. Eschmann, Topeka, argued the cause, and L. M. Ascough and John A. Bausch, Topeka, were with him on the brief for appellees, Farmers Co-op Elevator and Kansas Farmers Union Serum Co.

O'CONNOR, Justice.

This is a products liability case that arose from the sale of vaccine for the immunization of cattle against the disease commonly known as Blackleg.

The action was instituted by the purchaser, Ralph S. Chandler (appellant), against the manufacturer, Anchor Serum Company, the distributor, Kansas Farmers Union Serum Company, and the retailer, Farmers Co-op Elevator (appellees). Subsequent to the filing of the notice of appeal, Ralph Chandler died, and on motion made and allowed, Gladys M. Chandler, executrix of his estate, has been substituted as appellant.

The question presented is whether or not the plaintiff has made out a claim based on (1) res ipsa loquitur and (2) breach of an implied warranty.

The salient facts, as gleaned from plaintiff's opening statement and his evidence, are that he had been in the business of raising calves since 1926. As the owner of a large acreage on which he raised approximately 500 calves annually, he had, since about 1928, vaccinated his calves against Blackleg. On only one occasion-in 1958, on a pasture in Chase county-had the disease occurred in his herd. On May 9, 1963, plaintiff purchased several bottles of 'CCS Bacterin' from the Farmers Co-op Elevator at Richmond and vaccinated a group of calves, also castrating and dehorning them at the same time. On the two succeeding days he bought additional vaccine from the co-op and vaccinated, castrated and dehorned some more calves. On May 12 four dead calves were discovered among the group vaccinated May 9. A veterinarian who was called diagnosed Blackleg as being the cause of death. The co-op was notified and it in turn called the manufacturer, Anchor Serum Company. A company representative called on the plaintiff, observed the dead animals and the equipment used, and reviewed with plaintiff the method employed. The empty and remaining vials of vaccine were turned over to the representative. During the next several days two more groups of calves were vaccinated. Deaths occurred and lameness developed in both groups. Anchor was notified of the continued trouble. By this time approximately one-half of the herd had been vaccinated with Anchor vaccine. Twenty-nine calves died; others were ill. Several days later approximately 250 more calves were castrated, dehorned and vaccinated with vaccine produced by manufacturers other than Anchor. None of the latter calves developed Blackleg.

All of the calves in the herd were in good physical condition at the time they were vaccinated. The same procedure was followed each time in vaccinating, dehorning and castrating the calves and was performed by the plaintiff and his hired man. Each calf was placed in a 'cradle' for handling. The vaccinating and dehorning equipment was laid on the back of a pickup truck which was backed within five feet of the cradle. The dehorning equipment was placed in disinfectant and was boiled each morning. A syringe was used to administer a 5-cc. dosage of vaccine to each calf. Each bottle of vaccine, when purchased, was sealed with a rubber stopper, and the syringe was filled by piercing the stopper. After each inoculation the syringe was dipped in alcohol and laid on a towel in the back of the truck.

Plaintiff claimed damages for the calves that died, for his time, veterinarian expense in caring for the calves, and depreciation to his pasture land.

In his petition, plaintiff alleged the vaccine was prepared, manufactured and bottled by Anchor, which, in turn, sold it to the distributor and thence to the retailer, and that he suffered damages as a result of Anchor's negligence in the preparation or manufacture of the vaccine, 'and other legal causes.' Each of the defendants specifically denied liability, and by way of affirmative defense alleged that plaintiff's damages, if any, were contributed to by his own negligence or fault. At a pretrial conference held on October 16, 1964, plaintiff stated that as a basis for recovery he intended to rely on negligence, including res ipsa loquitur, and breach of implied warranty. On May 17, 1965, the case came on for trial. Immediately following plaintiff's opening statement to the jury, the distributor and retailer defendants moved for judgment on the pleadings and opening statement of the plaintiff, and the motion was sustained. The case proceeded to trial against only Anchor, the manufacturer. At the conclusion of plaintiff's evidence Anchor moved for a directed verdict, which motion was sustained. It is from these rulings plaintiff appealed.

In his statement of points plaintiff assigns as error: (1) it was improper for the trial court to sustain the motion for directed verdict in view of evidence sufficient to support a claim in negligence, based upon res ipsa loquitur; and (2) the court erred in disregarding the implied warranty that the serum had been manufactured, bottled, handled and sold in such manner as not to be inherently or imminently dangerous.

Farmers Union Serum Company and Farmers Co-op first challenge plaintiff's right to question the trial court's ruling on their motion for judgment on the pleadings and opening statement for several reasons-principally, that plaintiff's statement of points does not specify the ruling as error. The challenge is meritorious in part. The first point specifically referred to the motion for directed verdict, and in that respect plaintiff has limited himself to a review only of the ruling on the motion for directed verdict in regard to the applicability of the doctrine of res ipsa loquitur as against Anchor Serum Company. The second point referred generally to the trial court's disregarding plaintiff's theory of recovery on breach of implied warranty. We believe that under Rule No. 6(d) of our rules of appellate procedure (194 Kan. xiv) the point was sufficiently stated to bring to this court for review the propriety of the trial court's ruling on the motion for judgment on the pleadings and opening statement, as well as its ruling on the motion for directed verdict-all on the implied warranty question as against all defendants.

We now turn to the question of whether or not plaintiff's evidence previously narrated made a submissible case to the jury against the manufacturer of the vaccine under the doctrine of res ipsa loquitur. In support of his position, plaintiff argues his evidence established the essential elements as stated in many of our decisions, such as Mayes v. Kansas City Power & Light Co., 121 Kan. 648, 249 P. 599, Nichols v. Nold 174 Kan. 613, 258 P.2d 317, 38 A.L.R.2d 887, and Worden v. Union Gas System, 182 Kan. 686, 324 P.2d 501, which warrant application of the doctrine. While no contention is made that the doctrine is inapplicable to this particular type of case, Anchor contends that plaintiff did not prove that its serum was the thing or instrumentality which caused plaintiff's injury and damage, and therefore, the doctrine cannot be applied, citing, among other cases, Emigh v. Andrews, 164 Kan. 732, 191 P.2d 901, in particular.

The subject of res ipsa loquitur has received generous treatment by this court. Some of the most recent cases in which our numerous decisions are collected and reviewed are Blue Stem Feed Yards v. Craft, 191 Kan. 605, 383 P.2d 540, Wehkamp v. City of Garden City, 187 Kan. 310, 356 P.2d 826, Worden v. Union Gas System, supra (majority and dissenting opinions) Rupe v. Smith, 181 Kan. 606, 313 P.2d 293, and Lamb v. Hartford Accident & Indemnity Co., 180 Kan. 157, 300 P.2d 387. The doctrine is a rule of evidence, rather than substantive law, and does not destroy the force of the rules that negligence is never presumed but must be proved, and that the fact an injury occurs is not sufficient to establish liability. Ordinarily, the doctrine is applicable only to those cases where the instrumentality or thing causing the injury or damage is under the exclusive control of the defendant at the time of the injury or damage, and the surrounding circumstances are such as to leave no reasonable conclusion to be drawn therefrom other than that the...