Rector v. H. K. Mulford Co.

• Decision Date: 15 April 1916
• Docket Number: No. 1747.,1747.
• Parties: RECTOR v. H. K. MULFORD CO.
• Court: Missouri Court of Appeals

185 S.W. 255

RECTOR v. H. K. MULFORD CO.

No. 1747.

Springfield Court of Appeals. Missouri.

April 15, 1916.

Appeal from Circuit Court, Christian County; John T. Moore, Judge.

Action by T. F. Rector against the H. K. Mulford Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Barrett & Moore, of Ozark, for appellant. S. E. Bronson, of Ozark, and Hamlin, Collins & Hamlin, of Springfield, for respondent.

STURGIS, J.

This is a suit for damages for loss of plaintiff's hogs from hog cholera after being treated by use of a "serum" manufactured and sold by defendant. We adopt respondent's statement of the case, with slight corrections, as being most favorable to him:

Plaintiff is a farmer residing in Christian county, and pays particular attention to the raising of fine hogs. The defendant is a wholesale corporation of Philadelphia, Pa., engaged in the manufacture and sale of different kinds of serums, drugs, and alkaloids of all kinds, and having branch houses or shipping points at Kansas City and St. Louis, Mo.

One Mr. Overs, of Joplin, Mo., was, and for a long time had been, representing the defendant throughout Southwest Missouri as its salesman. Prior to the date mentioned in the petition a company was operating in Christian and other counties known as the Farmers' Serum Company, selling hog cholera serum (not defendant's). They were not only selling serum, but administered it by vaccination, and one Dr. Winters, a veterinary surgeon residing in Christian county, was working for them administering the serum. This company quit business, and Mr. Overs looked up Dr. Winters and asked him to assist in selling and introducing the defendant's serum for the prevention of cholera in hogs. Dr. Winters told him that the Farmers' Serum Company was giving a guaranty of 95 per cent., and asked him if his company would do the same, and he said it would, and they, together and individually, so represented to the farmers, one of whom was this plaintiff. They traveled together over the country and vaccinated hogs. They would first see how many hogs they could get to vaccinate, and then Overs would order the serum, and when it came they would go out and use it. Overs assisted Dr. Winters at some 15 or 20 places in administering the serum. Prior to the time Overs enlisted Dr. Winters in this work he had sold the doctor goods (what kind is not stated) manufactured by this company, and the company acknowledged the receipt of his orders given to "our Mr. Overs." Overs had gone to St. Louis at the time of arranging for and vaccinating the plaintiff's hogs, but he told Winters to go right ahead with the work as they had been doing. Dr. Winters testified that all the precautions as directed by defendant were used in vaccinating plaintiff's hogs, and that he followed the printed directions of this defendant; that plaintiff's hogs were healthy at the time they were vaccinated, and shortly afterwards they took sick and died. He says that:

In vaccinating "we went by the dose that was advised on the bottle. We injected the hogs in the fleshy part of the inside of the thigh with a large hypodermic needle. We had the necessary disinfectant, and washed the hogs with Laquor creosote, which we got from the defendant, and advised by them to be used."

The evidence shows that the serum is blood from a hyper-immune hog incubated to where it is ready for use, and will produce immunity in other hogs. Dr. Winters further testified:

That he told plaintiff he would vaccinate the hogs, and that "our guaranty was 95 per cent. I charged him the same price that Overs and I had charged others. I made these representations before I vaccinated the hogs, and made them on the authority of Mr. Overs. Mr. Overs was not there at the time, having gone to St. Louis, I did this of my own accord. I was not representing the Mulford people. I never did represent the Mulford people. All that Mr. Overs had to do with the company was to sell their products, so far as I know. This medicine is put up under United States inspection. The United States inspects the manufacture and final tests all the way through."

On each bottle of the medicine was this printed notice:

"Under no circumstances do we accept any responsibility, express or implied, as to the results of its use or sale. If the purchaser does not accept hog cholera virus on the above terms, it should be returned to us within five days. This product should be used only by qualified veterinarians. We guarantee that this product is carefully prepared, but we assume no responsibility for results following its use."

The plaintiff testified that he contracted with and paid Dr. Winters, Mr. Overs being in St. Louis at the time, to vaccinate his hogs, and that the doctor assured him that Mr. Overs said the defendant guaranteed to save 95 per cent. Eight days after they were vaccinated they began dying, and the last one died about five weeks from the first. Eighty-nine hogs died altogether.

Robert Brown, a neighbor of plaintiff, testified (over defendant's objection that this conversation related to other hogs) that Dr. Winters and Overs came to his place shortly before plaintiff's hogs were treated; that Winters introduced Overs and Overs explained their business; that he was selling hog cholera serum for the Mulford people, and that they guaranteed to save 95 per cent. of all that were treated; he explained all about the virus, and told him he would not lose more than 5 per cent., and it would immune his hogs for life; that he made a contract for the vaccination of his own hogs with Overs; that Dr. Winters administered the same stuff to plaintiff's hogs that he did to witness' hogs; that he saw plaintiff's hogs the eighth morning after they were vaccinated, and they were all sick. This witness' wife testified that Mr. Overs said the Mulford people guaranteed to save 95 per cent. of the hogs vaccinated.

Dr. Brown testified that he knew Overs and had bought goods (of some kind) from him frequently, and that Overs was selling goods for the defendant company; that he had given him orders, and afterwards the goods were shipped; that just a few days before the trial he had seen Overs in Springfield; that he had his order book and said he was selling quite a good deal of stuff for the Mulford people; that the only thing he knew of Mr. Overs having to do with the Mulford Company was to sell their products.

Other witnesses testified as to conversations with Overs in which he made the guaranty generally as before mentioned. One witness said he talked with Mr. Overs about vaccinating plaintiff's hogs, and Overs, on being asked what per cent. they guaranteed, said they guaranteed 95 per cent. The evidence also shows that afterwards one Dr. Palmer appeared in the community in company with Overs, and was introduced by Overs as the bacteriologist of the defendant company. Dr. Winters said he talked with Dr. Palmer about the cause of the death of plaintiff's hogs and told him that he believed it was diphtheria. Dr. Winters notified Dr. Palmer of the fact of the hogs dying, and told him there would possibly be a damage suit, and the witness thought Dr. Palmer and Mr. Overs came to investigate the facts and try to straighten it up. Dr. Palmer was present at the...