Richards v. H.K. Mulford Co.

• Decision Date: 14 November 1916
• Docket Number: 2773.
• Citation: 236 F. 677
• Parties: RICHARDS v. H. K. MULFORD CO.
• Court: U.S. Court of Appeals — Sixth Circuit

236 F. 677

RICHARDS v. H. K. MULFORD CO.

No. 2773.

United States Court of Appeals, Sixth Circuit.

November 14, 1916

Caruthers Ewing, of Memphis, Tenn., for plaintiff in error.

W. F Murrah, of Memphis, Tenn., for defendant in error.

Before KNAPPEN and DENISON, Circuit Judges, and COCHRAN, District judge.

DENISON Circuit Judge.

Richards a levee contractor, owning a number of mules and desiring to protect them from anthrax, purchased at a Memphis retail store ten bottles of anthrax vaccine, manufactured by the Mulford Company, which is engaged on a large scale in the manufacture of serums, vaccines, antitoxins, etc. Having had some experience in giving similar treatments, Richards proceeded himself to treat his mules by injecting this vaccine hypodermically. He poured two bottles into a cup and, with the contents, filled his syringe and used it; he then emptied four bottles into the cup, and took therefrom two syringefuls, and then used the remaining four bottles in the same way. Within a short time all of the mules which had been treated with vaccine from the second cupful died from tetanus; none of the others were affected. Richards brought this action against the Mulford Company on the theory that, in the course of manufacture, it had permitted the vaccine in one of these bottles to become infected with the tetanus germ, whereby it became unfit for its intended use, and by negligence and by implied warranty the Mulford Company became liable for the value of the mules thus killed. The District Court directed a verdict for defendant, upon the ground that there was no evidence which supported plaintiff's theory and which was of that character which justified submission to a jury. The plaintiff brings this writ of error.

The question is of very narrow compass. There is, for the purposes of this review, no dispute that the mules died because they were infected with tetanus at the time this vaccine was injected. There was no evidence whatever directly tending to show negligence in the manufacture or unfitness when sold. The defendant's evidence, undisputed and apparently not subject to doubt (unless inferentially), showed that the manufacture of this vaccine was carried on with the utmost skill and care, and with the most perfect precautions known to science. There was no reason to suspect the existence of tetanus germs anywhere around the Mulford factories, save that such germs were used in the manufacture of tetanus antitoxin; but this was at a place a mile distant from where the vaccine was made, and the employes were separate; and that the fatal germ may have come into the vaccine from this source is mere surmise; it is possible, but highly improbable. Counsel do not suggest any plausible explanation of how it could happen.

On the other hand, the evidence that the trouble probably came from Richards' own carelessness in the operation of administering the remedy is very strong. It appears, without dispute, that stable manure and the surface soil around a stable form the favorite habitat of this germ, and that it is commonly carried therefrom by flies or blown around by the wind; that many thousands might be carried on a fly's foot or a speck of dust hardly visible to the naked eye; that Richards used this cup in a feed tent adjacent to his own corral, in which a hundred mules were kept on the levee bank, and where manure was scattered about and had accumulated; that the doors were open, it was a dry, hot day, the wind was blowing through, and the flies were thick; and the open cup from which he filled his syringe stood all the time exposed in this tent. It is manifest to us that the weight of the evidence is against the plaintiff's theory; nevertheless, and even though the trial judge might rightly think it was his duty to set aside a verdict for the plaintiff, if rendered, and award a new trial-- at least once-- the case should have been submitted to the jury if there was any substantial evidence tending to support each of the steps essential to a recovery.

Plaintiff does not question the general rule that a case should not be submitted if a verdict for plaintiff would rest on conjecture or surmise, as distinguished from evidence, or that the plaintiff must fail where the case shows merely a possibility that the foundation of the action exists. Of course, the criterion is not whether the evidence, in the court's judgment, will equally support either conclusion; many disputed issues of fact respond to that definition; the critical test of this class of verdict, directed for defendant, must be whether the court can say that all reasonable men must agree in finding the evidence insufficient to raise the inference upon which plaintiff relies. This court has pointed out that in awarding a new trial because the verdict was against the weight of evidence, the trial judge is applying his own judgment to the problem; in directing a verdict, he is...