O. M. Franklin Serum Co. v. C. A. Hoover and Son

• Decision Date: 13 January 1969
• Docket Number: No. 7883,7883
• Citation: 437 S.W.2d 613
• Parties: O. M. FRANKLIN SERUM COMPANY, Appellant, v. C. A. HOOVER & SON et al., Appellees. . Amarillo
• Court: Texas Court of Appeals

Page 613

437 S.W.2d 613

O. M. FRANKLIN SERUM COMPANY, Appellant, v. C. A. HOOVER & SON et al., Appellees.

No. 7883.

Court of Civil Appeals of Texas.

Amarillo.

Jan. 13, 1969.

Rehearing Denied Feb. 10, 1969.

Underwood, Wilson, Sutton, Heare & Berry, R. A. Wilson, Amarillo, of counsel, for appellant.

Lemon, Close & Atkinson, Otis C. Shearer, Perryton, of counsel, for appellees.

DENTON, Chief Justice.

Our former opinion is withdrawn and the following opinion is submitted in lieu thereof.

This is a products liability case. C. A. Hoover and Dale Hoover, a partnership, d/b/a C. A. Hoover & Son, brought this suit against O . M. Franklin Serum Company, alleging the death and injury to calves as a result of the use of an antibiotic consisting of penicillin and dihydrostreptomycin sold under the trade name of 'Franklin Pen-Strep'. Based on a jury verdict the trial court entered judgment for the plaintiffs.

On October 14, 1964, Dale Hoover injected 28 of their registered Hereford calves with a serum. 25 were injected with Pen-Strep, a serum distributed by the defendant, while the other three were injected with another serum obtained from a local veterinarian, called neomycin. Mr. Hoover testified it took some approximately 30 minutes to complete the inoculation of all the calves. By the time the last calves had been injected, five of the calves which had been injected with Pen-Strep 'were already dead, and the other calves were reacting'. A total of nine calves died within a few minutes after the injections were completed. Another calf died about two weeks later and the eleventh calf died some two months later. The remaining fourteen were adversely affected and recovered slowly. The three calves which were injected with neomycin obtained from the veterinarian were not affected. Plaintiffs alleged the serum distributed by Franklin was not fit for its intended use and this infitness was the producing cause of the death of the eleven calves and injuries to the remaining fourteen. No acts of negligence were alleged. Recovery is sought only on the theory of breach of warranty. This cause was previously before the court on plea of privilege. O. M. Franklin Serum Company v. C. A. Hoover & Son (Tex.Civ.App.), 410 S.W.2d 272 (Error Ref.N.R.E.). With Per Curiam opinion, 418 S.W.2d 482. The prior decision extended the doctrine of strict liability of sellers of defective products which cause physical harm to persons, as held in McKisson v. Sales Affiliates, Inc (Sup.Crt.), 416 S.W.2d 787 to defective products which cause damage to property of the ultimate consumer.

The jury found that the serum distributed by Franklin was unfit for its intended use; that the use of the serum was the producing cause of the death and harm suffered by the calves; and that harm to the cattle was not the result of an abreaction. The defendant contends first there is no evidence and insufficient evidence of the unfitness of the serum for its intended use; and there is no evidence and insufficient evidence that any harm to the calves was not the result of an abreaction.

The Hoovers were ranchers in the Perryton, Texas area. They normally raise from 225--260 Hereford calves each year. These calves would always be injected for blackleg and malignant edema. It was also their common practice, at weaning time or times of stress, to give the calves an injection of Pen-Strep as treatment for an oncoming respiratory ailment. Dale Hoover, a holder of a Bachelor's and Master's degree in Animal Husbandry, performed the injections here in question. Appellees had trucked these 28 calves to their home ranch from a distant ranch after they had been weaned shortly before. On the morning in question, Dale Hoover noticed three of the calves showed signs of respiratory disorder, primarily some discharge from the nose. He informed Dr. Hardy, a local veterinarian, of this condition, who prescribed an injection of neomycin for these three. Upon Hoover's further inquiry, Dr. Hardy agreed to 'would do no harm' to inject the remaining 25 calves with Franklin's Pen-Strep 'at the same time'. Hoover obtained the serum for the three calves from the veterinarian and purchased two bottles containing 200 ccs. each of Pen-Strep from a Perryton drugstore on the morning of October 14. He began the 30 minute operation shortly after purchasing the serum. Immediately upon completion of the injections, the reaction of the calves was noticed by Hoover, as previously stated. By the time Hoover followed the last calf into the lot, five calves were already dead and the other 20 calves were reaction. Some of the calves were laying down in apparent pain, some were having muscle convulsions, some frothing or salivation at the mouth, and some showed signs of swelling around their eyes and nose. Some of the calves that were not down 'showed excessive salivation and were doing lots of groaning and carrying on, making it readily visible they were in pain'. Hoover called Dr. Hardy at once, who came within ten minutes and began treating the calves. Four more of the calves died shortly after Dr. Hardy arrived. Dr. Hardy described the calves at 'the sickest bunch of cattle I have seen'. Two of the remaining fourteen which did not die but were adversely affected did not respond to care and feed and were sold later by the pound as grade cattle. The remaining twelve were sold the following spring as breeding bulls. Dr. Hardy performed an autopsy on one of the bulls and found 'the lungs were quite edematous, containing large amounts of fluid, also fluid around the trachea, which is the windpipe * * * also emphysema of the lungs. This is actually there in the lungs, but in the part of the lungs in the tissue where it is not supposed to be. This is brought about by labored respiration, fast respiration.' Dr. Hardy, from the history he was able to obtain and upon what he saw, made a tentative diagnosis of anaphylactic shock. No other diagnosis was offered. Dr. Hardy explained he could have no final diagnosis unless he had something pathognomonic, which he has defined as 'clear cut' or 'that it has got to be this, nothing else' or 'I have a laboratory report confirming this tentative diagnosis'. In describing anaphylactic shock, Dr. Hardy testified: 'I believe the classical definition of anaphylactic shock would be something like a hypersensitivity resulting from previous exposure to a foreign protein, usually by injection'. All veterinarians testifying agreed anaphylactic shock could also be caused by contact with a fungus through the skin, through injection, or eating, usually some plant that might synthetize in the instant case. This is the law of anaphylactic shock 'is not a well understood thing'. An examination of the defendant's expert witnesses seemed to confirm this conclusion.

As stated, the rule of strict liability of sellers of defective products which cause damage to the property of the ultimate consumer by virtue of an implied warranty of fitness has been pleaded and is applicable in the instnat case. This is the law of this case; O. M. Franklin Serum Company v. C. A. Hoover & Son (Sup.Crt.), 418 S.W.2d 482. The primary question on this appeal on the merits is causation, that is, whether the Pen-Strep distributed by Franklin caused the damage to the Hoover calves as a result of its being unfit for its intended use.

There is no direct evidence the serum used in inoculating the 25 Hoover calves was defective. However, any element, including a proximate cause may be established by circumstantial as well as by direct evidence. Bock v. Fellman Dry Goods Company (Tex.Comm.App.), 212 S.W. 635 (Opinion adopted). Republic National Life Insurance Company v. Bullard (Tex.Civ.App.), 399 S.W.2d 376 (Ref. n.r.e.). This rule does not require the quality of absolute certainty, nor is the plaintiff required to exclude every other possibility. It is required that the circumstances point to the ultimate fact sought to be proved with that degree of certainty as to make the conclusion reasonably probable. McMillen Feeds, Inc. of Texas v. Harlow (Tex.Civ.App.), 405 S.W.2d 123 (Ref. n.r.e.).

In addition to the neomycin purchased from Dr. Hardy, and which was used to inject the three calves which were not affected, Hoover purchased two bottles of Pen-Strep, each containing 200 ccs. The supply in the first bottle was all used and the last 'one or two' of the 25 calves were inoculated from the second bottle. Hoover used the same syringe throughout the operation, and through an experiment conducted by Dr. Hardy during the trial, it was shown there would have been a 'carry-over' of the serum from the first bottle in the syringe which could have contaminated the serum removed from the second bottle. It is undisputed all 25 calves injected with Pen-Strep were affected almost immediately after the injections. Five died within minutes and four others died within an hour. The remainder were affected to a lesser degree within minutes. Dr. Hardy testified the 100% Reaction 'would be indicative to me, would indicate, that maybe something was wrong with this product, but still not conclusive'. Dr. Morgan, a veterinarian employed by Franklin also confirmed that the 100% Reaction indicated 'there was a contaminant in the product' if that was the only information that he had other than the diagnosis of anaphylactic shock. Dr. Morgan testified shock was becoming evident in the use of pharmaceutical and biologics in the veterinary field, and his company saw the need for a treatment of shock in 1960 to be administered by ranchers and stockmen. The company proposed a product for this treatment which contained epinephrine, but the government refused to permit the product to be marketed because epinephrine is a hormone-like product and the law required a prescription for its purchase. Franklin recognized the frequency of shock in these cases and had prescribed a method of treatment for anaphylactic shock in its catalogue since 19...