Hollingsworth v. Midwest Serum Co.

• Decision Date: 14 May 1917
• Docket Number: No. 31347.,31347.
• Citation: 183 Iowa 280,162 N.W. 620
• Parties: HOLLINGSWORTH v. MIDWEST SERUM CO. ET AL.
• Court: Iowa Supreme Court

183 Iowa 280

162 N.W. 620

HOLLINGSWORTH

v.MIDWEST SERUM CO. ET AL.

No. 31347.

Supreme Court of Iowa.

May 14, 1917.

Appeal from District Court, Pottawattamie County; A. B. Thornell, Judge.

Action for damages for negligence in the manufacture and sale of certain serum known as hog cholera serum. The serum was manufactured and sold for the purpose of use as a preventive for hog cholera. There was a verdict for the plaintiff, and the defendants appeal. Reversed.A. F. Mullen, of Omaha, Neb., and Tinley, Mitchell, Pryor & Ross, of Council Bluffs, for appellants.

Hess & Hess, of Sioux City, and Kimball & Peterson, of Council Bluffs, for appellee.

EVANS, J.

The Midwest Serum Company is a Nebraska corporation doing business at Omaha and engaged in the manufacture and sale of certain products intended to be used by inoculation as a preventive for hog cholera. The defendants Juckniess and Smylie are the president and secretary respectively of such corporation. The petition is in five counts; each count representing a separate and distinct cause of action against the defendants. These five causes of action accrued separately to five different persons. The first count represents a cause of action originally accruing to the plaintiff himself, whereas the other four causes of action were acquired by the plaintiff by assignments. The assignors are Koon, Benedix, Walden, and Preston. The plaintiff and Koon are practising veterinary surgeons who separately purchased the certain serum from the defendant company. Each of them used the serum so purchased upon his own hogs, and claims to have been damaged thereby. The other three assignors are farmers who were owners of herds of hogs and who employed Koon to vaccinate the same. For that purpose Koon used the serum purchased from the defendants, with a resulting damage to each, as claimed. The claim of negligence is bottomed principally upon the theory that the defendant company put upon the market a serum which was not of a sufficient potency to counteract the virus of hog cholera, and that thereby it violated a statute of the state of Iowa, and was therefore ex necessitate negligent, and that such negligence was the proximate cause of great loss to the plaintiff and his assignors by reason of the loss of their hogs by cholera. So far as this question is concerned, the answer of the defendants was a general denial. An understanding of the facts in the case requires the aid of expert testimony as regards the state of the art and science of cause and prevention of hog cholera as the same was understood and practised on and prior to July, 1914, the date of the sales in question. The expert testimony on both sides is not greatly in dispute at any point material to our consideration. The next paragraph hereof will be devoted to excerpts from the testimony and to a setting forth in some detail of the facts, expert and otherwise, which are necessary to an understanding of the later discussion. Preliminary thereto it may be said that the art of dealing with hog cholera has been developed by experimentation to a very considerable degree of success. The method is one of inoculation. Two agencies are used; one being known as the virus, and the other as the serum. The virus contains the poison or active principle of cholera. The serum contains the principle of immunity or antidote to the poison. The theory is that if a hog be exposed to the infection of cholera, the development of cholera from such infection will be neutralized and prevented by immediate inoculation with the antidote serum. It is essential to the effectiveness of the antidote that it be administered immediately after the infection of the poison and at least within two days. The method of treatment therefore is to inoculate the hog in different parts of his body with the virus and the serum at the same time. If the treatment works successfully, the hog passes through a period of reaction or fever, and recovers, and is thereafter immune from cholera. Under the terminology of the art the hog which has passed through such treatment is called an “immune” hog; whereas one which has never passed through such treatment and which has never had the cholera is known as a “susceptible” hog. The successful use of the serum is not necessarily dependent upon the artificial infection of the hog with the virus. If a hog were infected naturally by contact with cholera hogs, an immediate inoculation with serum would theoretically be sufficient to arrest and neutralize the cholera infection. The practical difficulty at this point is that it is impossible by any known method to discover the presence of cholera infection in its first stages. No symptoms appear until after several days of incubation. When the development has reached the stage of symptoms it is too late to inoculate successfully. To inoculate in such case therefore is to work in ignorance for the time being, without knowing when infection was had or whether any was had. By introducing the poison and the antidote at the same time, this uncertainty is avoided. This is called the “simultaneous” treatment, whereas the use of the serum alone upon a naturally infected or sick hog is called the “single” treatment. For the purpose of the simultaneous treatment, it is desirable that the virus be virulent and the serum be as potent. The virus being administered upon a susceptible hog, he is sure to die, unless the serum be sufficiently potent to counteract the poison.

Neither the virus nor the serum is an artificial compound of ingredients. Each of them is simply the blood of a hog, defibrinated. That is to say, each of them is the serum of the blood, though the name “serum” is applied to only one. The virus is the blood of a cholera hog, and is taken from animals about to die from cholera. The serum is the blood of an immune hog. The processes for obtaining this latter are much more extensive than those for obtaining the virus. The immune hog may be rendered hyper-immune. The method of doing this is to inoculate the immune hog with very heavy doses of virus; and, after many days, if the hog continues well, to draw from him a quart or more of blood. In the record, this process is called hypering. The serum from the hyper-immunized hog is supposed to be more secure in its purity and potency than it would be if such process were not had. The serum being thus obtained is complete. No medicinal ingredients are added to it. Before offering the same for sale it is subjected to a test by experimentation. There is no known method of applying a test to the serum directly. Whether it is in fact potent in the particular case cannot be ascertained chemically or miscroscopically. No constituent part has ever been discovered in it which is not found in the blood of any healthy hog. The theory is that this serum necessarily contains some organism termed “anti-body,” which multiplies itself rapidly and overcomes the virus. No such organism, however, has ever been found by any method of research. The term “antibody” is a mere name for the conception. The only method of test therefore that is available is to try the serum upon infected hogs and observe the results. The generally accepted test is known as the “eight-pig test.” A description of this test will appear in the testimony of some of the witnesses hereinafter quoted. Briefly stated eight healthy pigs are selected and are inoculated with the virus. Six of them are inoculated with the serum also, different quantities being used. The serum is not used upon the other two. They are called the “check” pigs. They are expected to die as a result of infection. When the disease has about run its course, they are killed and a post mortem examination had to determine whether they in fact had cholera. If the “check” pigs are found to have cholera and the other six pigs get well, the serum is deemed effective and ready for the market. If any of the six pigs die, the test is not satisfactory, and a subsequent test must be had before the serum can be put on sale. If a subsequent test proves successful, this is sufficient to justify the use of the serum. Under the law a complete record must be made and kept of each test in all the details of its successive stages, and this record must be preserved and kept open at all times to the inspection of public officers.

The defendant's serum was produced in quantities of 20 gallons in one container. Each quantity so produced was identified by number and known as a lot or series of which a complete record was kept. In July, 1914, the plaintiff and his assignor Dr. Koon received from the defendant company certain serum, and they used the same in the treatment of hogs. The mortality was very great. The plaintiff claims that out of 52 hogs treated by him 28 died. Similar results were had with other herds. A portion of the serum received by Dr. Koon was sent to the agricultural college, and was there tested by Dr. Cole. The test applied was the eight-pig test, but was only approximately followed. Of the six hogs receiving serum four died and two lived. Except as hereinafter indicated, it is undisputed that before the serum was put upon the market by the defendant, it had been subjected to the eight-pig test, and a complete record of the test was preserved. The test was conducted in the generally accepted way, and was completely successful in result. Three days before the serum in question was received by the plaintiff, he had received from the defendant a quantity of serum, and had used the same with undoubted success. It is the claim of the plaintiff, however, that such serum came from another lot or series, whereas it is the claim of the defendant that it was a part of the same lot No. 18, and this is indicated also by the records of the defendant which were kept by it in conformity to the law. The plaintiff, however, is undoubtedly entitled to the benefit of his contention upon any disputed fact in the...