Hruska v. Parke, Davis & Co.

• Decision Date: 04 June 1925
• Docket Number: No. 6726.,6726.
• Citation: 6 F.2d 536
• Parties: HRUSKA v. PARKE, DAVIS & CO.
• Court: U.S. Court of Appeals — Eighth Circuit

6 F.2d 536 (1925)

HRUSKA v. PARKE, DAVIS & CO.

No. 6726.

Circuit Court of Appeals, Eighth Circuit.

June 4, 1925.

Lon O. Hocker, of St. Louis, Mo. (Jones, Hocker, Sullivan & Angert and Ralph T. Finley, all of St. Louis, Mo., on the brief), for plaintiff in error.

Thomas Bond, of St. Louis, Mo. (Rassieur & Goodwin, of St. Louis, Mo., on the brief), for defendant in error.

Before SANBORN and LEWIS, Circuit Judges, and POLLOCK, District Judge.

POLLOCK, District Judge.

The question presented for review in this case is clear and direct. Did the trial court commit error in sustaining the general demurrer to the third amended petition of plaintiff and in entering final judgment against plaintiff? A reading and statement of the facts found in the petition, well pleaded, hence by the demurrer admitted, may be summarized as follows:

Defendant corporation is and was engaged in the business of manufacturing chemists, making drugs, medicines, and preparations of many kinds, and in advertising and selling the same to retail druggists and pharmacists throughout the country. In the instant case the drug or preparation alleged to have been so made and sold by defendant is called "Camphor Solution Neutral," and as made by defendant in this case contained camphor in a mineral oil or liquid petroleum. The said "Camphor Solution Neutral" so made was and for many years prior to the happening of the injury to plaintiff had been advertised and recommended by defendant and sold "for hypodermic use or injection into the human body under the skin and into the flesh," and that physicians, surgeons, and members of hospital staffs thereby came to know and use said preparation so made for said purpose. For many years prior to the year 1919 physicians, surgeons, and members of the hospital staffs, and others, had known of a solution of camphor in an animal or vegetable oil, and that such preparation was beneficial in cases of exhaustion as a stimulant after surgical operations and from diseases and the like. Such camphor solution, composed of camphor and a vegetable or animal oil, was known to be both harmless and beneficial in such cases of exhaustion by the members of the medical profession, by medical authors, and was in general use among medical men. The reason why the camphor solution, composed of camphor and the vegetable or animal oil, was harmless in use to the individual, and helpful, arose from the fact the animal or vegetable oil used in such compound was readily absorbed when taken or injected into the human system; whereas, on the contrary, the mineral oil employed by defendant in the manufacture of its "Camphor Solution Neutral" would not and could not, when injected or taken into the human body, be absorbed, but, on the contrary, remained in the human system after injection as a foreign body or substance, thereby becoming deleterious and dangerous to human health. All these facts and things, at the date of the injury to plaintiff complained of, and long before that date, and at all times were well known and understood by defendant. Further, plaintiff between September 1 and October 20, 1919, was ill and under the care of a physician, who knew of the use made of camphor in solution with an animal or vegetable oil for subcutaneous injection, but who did not know that defendant had prepared its "Camphor Solution Neutral" with mineral oil, and, believing the same to be safe, helpful, and harmless, did inject large quantities of the same into the body and system of plaintiff. As a direct result thereof the mineral oil employed by defendant, not being capable of being absorbed by the human body, gathered in large deposits in plaintiff's system, causing him great pain and suffering, and causing him to be compelled to undergo many surgical operations, and the removal of large amounts of the flesh from his arms and body. That as a direct result he was compelled to pay a large amount in hospital and surgeon's fees, and was permanently damaged and injured in a large sum.

To this petition so alleging a general demurrer was interposed by defendant. This demurrer was sustained by the trial court, and plaintiff brings the case here assigning error thereon.

Do the facts well pleaded in the petition by plaintiff state an actionable controversy by plaintiff with defendant? The defendant says "No," to this question, because it says the cause of action as pleaded is bottomed upon negligence, and, as there is no privity of contract between the defendant manufacturer of the solution and plaintiff, there is no neglect of duty owed by defendant to plaintiff, hence no negligence.

A careful reading and analysis of the pleading of plaintiff will disclose the action as pleaded to be not entirely based on negligence, but to possess many, if not all, the elements of an action for fraud, in which the element of privity of contract would not be an essential one. In Savings Bank v. Ward, 100 U. S. 195, 25 L. Ed. 621, Mr. Justice Clifford delivering the opinion of the court, it is said: "Every imputation of fraud is disclaimed, and it is clear that the transaction is not one immediately dangerous to the lives of others. Where there is fraud or collusion, the party will be held liable, even though there is no privity of contract; but, where there is neither fraud or collusion nor privity of contract, the party will not be held liable, unless the act is one imminently dangerous to the lives of others, or is an act performed in pursuance of some legal duty."

The Circuit Court of Appeals for the Fourth Circuit, Pritchard, Judge, delivering the opinion for the court, in National Bank v. Kershaw Oil Mill, 202 F. 90, 120 C. C. A. 362, says: "It should be borne in mind that we are dealing with the law of fraud, and not with an action on a contract for breach of warranty or for simple negligence. If...