Murphy v. Sioux Falls Serum Co.

• Decision Date: 15 November 1923
• Docket Number: No. 5252.,5252.
• Parties: MURPHY v. SIOUX FALLS SERUM CO.
• Court: South Dakota Supreme Court

47 S.D. 44
195 N.W. 835

MURPHY
v.
SIOUX FALLS SERUM CO.

No. 5252.

Supreme Court of South Dakota.

Nov. 15, 1923.

Appeal from Circuit Court, Bon Homme County; R. B. Tripp, Judge.

Action by Dennis Murphy against the Sioux Falls Serum Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Reversed and remanded, with directions.

Dillon, J., dissenting.

[195 N.W. 835]

Lynch, Doyle & Smith, of Sioux Falls, and E. M. Boddington, of Kansas City, Kan., for appellant.

C. C. Puckett, of Tyndall, and Shull, Stilwill, Shull & Wadden, of Sioux City, Iowa, for respondent.

GATES, J.

This cause was before us upon a former appeal. 44 S. D. 421, 184 N. W. 252. Reference is made to that opinion. Upon retrial the jury again found for the plaintiff. From the judgment and order denying new trial, defendant appeals.

The action is for damages for the death of plaintiff's hogs from malignant edema, alleged to have been caused by anti-hog-cholera serum manufactured by defendant. The evidence showed that the veterinarian who administered the serum purchased it from defendant, of three serials, viz. A247, B10, and B12. Plaintiff's hogs were treated in three pastures. It was in the east pasture only that any of plaintiff's hogs died. The serials B10 and B12 were used in the east pasture. The serial B12 was not, but the serial B10 was, used in the other pastures. Upon the second trial the defendant showed (to use the language of the former opinion) that the serum had been prepared according to the approved method of preparing serum, that it had been carefully prepared and properly tested, bottled, sealed, and labeled, and that all reasonable care had been exercised to prevent any poisonous or deleterious matter from entering into the same. The defendant also showed that the serum had been manufactured under the immediate supervision of an agent of the Bureau of Animal Industry of the Department of Agriculture. It showed that the tests made at the plant had never revealed the presence of the germs of malignant edema in any serum there manufactured, and that it was a practical impossibility that such germs could have been in the serum, serial B12, with which the hogs in the east pasture were innoculated.

[1] The evidence of the veterinarian who administered the serum tended to show the possibility, if not the probability, that the germs of malignant edema got into the serum, or into the instrument, or into the wound, during the process of vaccination. As an instance showing a possible source of contamination, he poured the serum into a glass tumbler and operated the hypodermic needle from that, whereas a method less likely to result in contamination is to insert the needle in a cannula through the cork of the bottle. It is true that the veterinarian was permitted to testify that in his opinion it was the serum as it came to him from defendant that was contaminated. Upon cross-examination, however, he admitted that his only reason for his opinion was that “I could not figure out any other way how it happened.” The witness had not shown himself competent to give the opinion, and he should not have been permitted to give it. Again, the government...