No. 2773 | 6th Cir. | Nov 14, 1916
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
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 employés 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.
Upon either the theory of negligence or of breach of warranty, plaintiffs first step is to establish that the vaccine was infected when he bought it, and if he fails in that step, it becomes immaterial whether there is an implied warranty of fitness in the sale of such an article as this.
To put his case beyond the bounds of mere surmise, plaintiff relies upon several circumstances, of which we need mention only three: Rirst, that tetanus 'germs were later found in an empty bottle; second, that all the mules inoculated from the second cup, and none of those inoculated from the others, were affected; third, that this poison in the vaccine would have-been more virulent than germs from the stable, and that the extreme rapidity with which the disease developed indicated inoculation with poison of the highest potency.
1. Upon the first point, it appeared that, after emptying each bottle into the cup, Richards put back the cork and threw the bottle on the ground outside. Rive or six days afterwards, all the bottles that could be found were” picked up and put, unwrapped, on a .shelf. A few days later they were taken away and examined. The evidence has some tendency to show that, when thus examined, the interior of one of them carried a large colony of these germs, and that the interiors of all the others were sterile. We think no substantial inference that the bottles were in the same relative condition before they were first opened can reasonably rest upon this testimony. The high probability that a bottle, so exposed and not tightly scaled, might have become infected in this way during the five days is conceded, and that one cork might have been put in loosely and the others more tightly, is one of several reasons, any one of which is enough to account for the difference in their later relative condition. Indeed, that only one bottle was infected, and others, filled at the factory at the same time from the same container, were not, goes far to disprove plaintiff’s theory.
2. The second point is of similar character. If there were no other probable explanation, it might indicate that the contents of one of the second batch of bottles were infected when that bottle was emptied into the cup, and that, for this reason, the contents of the first and third cupfuls were not; but it may as well indicate several other things. The cup, when used the second time, had been standing there about 20 minutes. It was then merely rinsed in a carbolic solution, too weak
3. The third point has impressed us as more serious. The evidence shows that the disease and the symptoms which indicate the disease are not produced by the direct effect of the bacillus, or germ, but by the toxins which the germs throw off in the multiplying process which takes place when the germs have found a suitable location. If the vaccine had been infected at the time of manufacture, it might have been highly charged with these toxins at the time of use, and if these toxins were injected in the manner followed by plaintiff, s3unptoms of the poisoning would be expected to appear in three or four days, while, if the infection comes from the entry of the germs into an abrasion on the skin, symptoms are not expected within eight or ten days. The injection was Saturday morning; one of the.mules, had a stiff neck late Monday evening (during the third 24-hour period); two showed distinct symptoms on Tuesday; nearly all on Wednesday; and all 41 died within the. week. It is strongly urged that the appearance of symptoms as early as the third day distinctly tends to show that there was an injection of developed toxins, and so to show that the vaccine was infected when bought.
This contention overlooks the undisputed testimony from every witness,’ whose attention was called to it, that if the bacilli were injected beneath the skin, instead of lodging in a surface abrasion, and if this injection were accompanied by the conditions of an anthrax vaccination, the development of toxins would begin promptly and symptoms would appear or should be expected in three or four days. It is obvious that the matter of development will vary considerably according to the condition of the subject, and the lodgment the germ happens to take, and the extent of the' infection which happens to take place, and in view of such inevitable individual variations, there remains no substantial difference between the shortest possible time fixed by any witness with reference to the direct injection of toxins, viz., “two or three days,” and the time fixed by all the witnesses as a natural time for development, if the injection was of the bacilli under all the conditions here existing, viz., “three or four days.” In the balancing of these things, as applied to a case where there were some instances of development on the third day, many on the fourth, and others not until the fifth, we see nothing fairly and substantially tending to show that the vaccine contained developed toxins when it was used. As plaintiff’s expert witness frankly said, when asked what conditions led to quickest symptoms, “Well, it’s all speculation.”
We must think that plaintiff’s proof falls within the class pronounced insufficient by the Supreme Court in Patton v. Railway, 179 U.S. 658" court="SCOTUS" date_filed="1901-01-07" href="https://app.midpage.ai/document/patton-v-texas--pacific-railway-co-95387?utm_source=webapp" opinion_id="95387">179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361" court="SCOTUS" date_filed="1901-01-07" href="https://app.midpage.ai/document/patton-v-texas--pacific-railway-co-95387?utm_source=webapp" opinion_id="95387">45 L. Ed. 361, and by this court in Virginia Ry. v.
With the failure of this contention, plaintiff’s case must wholly,, fail. Nothing remains to support it, save conjecture — and conjecture which, upon the whole, is essentially improbable. In our judgment, all reasonable men must agree that an inference of defendant’s fault cannot safely rest on such premises. To permit a verdict for plaintiff would be to reward his negligence and penalize defendant’s care.
The judgment is affirmed.