Colorado Serum Co. v. Arp

• Decision Date: 22 December 1972
• Docket Number: No. 4098,4098
• Citation: 504 P.2d 801
• Parties: 11 UCC Rep.Serv. 1152 COLORADO SERUM COMPANY, a Colorado Corporation, Appellant (Defendant below), Pine Bluffs Drug Company, a Wyoming Corporation, O. M. Franklin Serum Company, a Colorado Corporation (Defendants below), v. Grant F. ARP and Darlene Arp, Appellees (Plaintiffs below).
• Court: Wyoming Supreme Court

Page 801

504 P.2d 801

11 UCC Rep.Serv. 1152

COLORADO SERUM COMPANY, a Colorado Corporation, Appellant (Defendant below), Pine Bluffs Drug Company, a Wyoming Corporation, O. M. Franklin Serum Company, a Colorado Corporation (Defendants below), v. Grant F. ARP and Darlene Arp, Appellees (Plaintiffs below).

No. 4098.

Supreme Court of Wyoming.

Dec. 22, 1972.

Guy, Williams, White & Mulvaney and A. Joseph Williams, Cheyenne, for appellant.

Hanes, Carmichael, Johnson, Gage & Speight, T. A. Fennell, and David H. Carmichael, Cheyenne, for appellees.

Before McINTYRE, C. J., and PARKER, McEWAN and GUTHRIE, JJ.

Mr. Justice PARKER delivered the opinion of the court.

Mr. and Mrs. Grant Arp, operators of a hog ranch, on August 3, 1966, purchased hog cholera vaccine (porcine blood origin-crystal violet inactivated virus) and vaccinated seventy weaner pigs, some of which became sick with suspected cholera. Eventually plaintiffs' entire herd was destroyed by state and federal officials pursuant to the cholera eradication program. The vaccine was purchased from the Pine Bluffs Drug Company, distributed by O. M. Franklin Serum Company, and manufactured by Colorado Serum Company, all three of which were sued by the Arps, the latter company assuming the entire defense with the understanding that it would satisfy any resulting judgment.

Trial of the cause to the court without a jury resulted in a judgment for plaintiffs in the sum of $21,779. The defendant-appellant, hereinafter referred to as defendant, has appealed, urging (1) plaintiffs had the burden of proving the vaccine defective and failed to carry it; (2) there was error in the court's admitting into evidence over objection the report of Dr. Noah and permitting Dr. Duncan to testify in connection therewith; (3) there was error in the court's admitting into evidence over objection Plaintiffs' Exhibit 1, a progress report in the hog cholera eradication program, and permitting Dr. Duncan to testify concerning it; (4) the court erred in permitting Dr. Sanders to testify as an expert; and (5) if the improper evidence be eliminated, the judgment is not supported by substantial evidence.

Plaintiffs respond that the challenged evidence was properly admitted and the burden of proof met albeit largely by circumstantial evidence. Additionally they present argument and insist that the court make pronouncements regarding the applicability of implied and express warranties under the Uniform Commercial Code vis-a-vis negligence of defendant.

The facts are not really disputed and the chronology of the events which we deem relevant to the litigation may be outlined as follows:

On August 3, 1966, plaintiffs bought three bottles of cholera serum manufactured by defendant (one containing twenty doses of Serial 608; one containing fifty doses of Serial 609, and one three-dose bottle of an unknown serial). Three days later the pigs were vaccinated from the first two mentioned bottles, plaintiffs throwing the empty containers in the trash can. ¹ They used no serum from the three-dose bottle. On August 11 they noticed one of the vaccinated pigs was sick. On the 18th they had a Nebraska veterinarian examine the animals. He gave them some medication and a half dozen collapsed. Further treatment was immediately administered but three died. The veterinarian autopsied the dead pigs, taking specimens from one, and indicating to Arp the specimens would be sent to the federally operated animal disease laboratory at Ames, Iowa.

The rest of the vaccinated pigs deteriorated rapidly from that point on and during the next ten days sows in the farrowing house and pens next to the weaner pigs became ill. On the 29th Arp took two pigs to veterinarians in Laramie, one of which died en route. According to Arp, specimens were taken and sent to Ames for analysis. On August 30 Arp burned the remains of all the dead pigs and on the same day the Wyoming State Veterinarian and federal veterinarians went to the Arp place and quarantine signs were posted. On the 31st veterinarians autopsied pigs at the Arps. A federal veterinarian stationed at Riverton, Dr. Noah, reported that diagnosis of hog cholera in the Arp swine herd was confirmed on September 1. Dr. Noah had begun his investigation August 30 and completed it September 6, stating in his report:

'* * * A Positive FA test was received on September 1st. All signs point to a vaccination break from Crystal Violet vaccine. None of the conditions that are usually connected with the introduction of Cholera into a herd were to be found in this case. * * *'

On September 2 and 3 state and federal veterinarians proceeded to depopulate the Arp swine herd under the cholera eradication program; the remains of all the animals were burned (eighteen of the pigs had died prior to the destruction of the herd).

At limen of consideration, the question of whether or not the plaintiffs' hogs had cholera should be disposed of. The defendant does not directly challenge this but seems to do so indirectly, especially by the remark in its brief that it now states 'categorically * * * the record contains no admissible evidence that Ames either diagnosed the tissues, or found cholera in them, or reported that it had done so.' In that regard, we are impressed by and accept the determination of the trial court in its prejudgment letter, which seems to be borne out by the record:

'* * * in the Defendant's pre-trial memo, Defendants in outlining the facts of the case, represented to the court that 'cholera developed in some of the hogs and the entire herd was destroyed under the Federal and State program for the eradication of hog cholera.' The general tenor of Defendants' pre-trial memo goes along on the basis that Plaintiffs' herd did have cholera. However, at the pretrial conference in accordance with the Plaintiffs' request to the Defendants that they specifically stipulate that the Plaintiffs' herd had cholera, the Defendants became hesitant and so the Court directed in its pre-trial report and order that at least 30 days before trial, the Plaintiffs be notified whether or not they would admit that the hogs had cholera. No notice was given to Plaintiffs within the time required by the Court.'

The letter continued with other reasons for the court's determination that plaintiffs' swine had contracted cholera; and under the mentioned circumstances, the defendant will not now be heard to argue or imply that the plaintiffs' swine may not have had cholera.

Apart from this aspect, the questions of plaintiffs' having met their burden of proof and of the judgment's being supported by substantial evidence are so closely related that logically they must to a certain extent be discussed together and neither can be resolved until there be a determination about the propriety of the trial court's admitting certain challenged evidence.

It is first urged that the report of Dr. Noah was improperly admitted and that his supervisor, Dr. Duncan, a federal veterinarian working for the Animal Health Division in charge of the State of Wyoming, was permitted to testify in connection with the report. We hold the challenge to be without force.

After a foundation had been laid, the court admitted the report under the Uniform Business Records as Evidence Act (§§ 1-170-1-173, W.S.1957), which ruling would seem to have been correct. See In re Estate of Morton, Wyo., 428 P.2d 725, 731; 32 C.J.S. Evidence § 730(2), p. 1052. ² Defendant cites In re Shreve, Wyo., 432 P.2d 271, as support for its position; but it will be noted that there the court was discussing only §§ 1-165-1-169, W.S.1957, and not those under which admission of the evidence in this instance was made. Dr. Duncan testified that when there is a hog cholera outbreak it is programmed procedure for such a report to be made out for the records, a copy being kept in his office, in the office of the state veterinarian, and in the Washington office. We see no error in the admission of the exhibit or in Dr. Duncan's being permitted to testify in connection with the report, it being within the trial court's discretion.

Passing to the contention that Plaintiffs' Exhibit 1, 'ARS 91-59, February 1967, Cooperative State-Federal Hog Cholera Eradication Program, Progress Report 1966, U.S. Department of Agriculture, Agricultural Research Service,' ³ was improperly admitted and that Dr. Duncan was permitted to testify regarding it, we find the charge...