#### MURPHY, Respondent, v. SIOUX FALLS SERUM COMPANY, Appellant.

(184 N. W. 252.)

(File No. 4806.

Opinion filed August 31, 1921.)

1. Pleadings — Negligence—Hogs Killed by Vaccination Serum— Dangerous, Poisonous, Substance — Allowing Serum to Become Contaminated, Resulting in Death of Hogs, Plaintiff Without Fault, Whether Cause of Action Stated — Prima Facie Case of Negligence.

A complaint for damages for value of hogs killed, alleging that certain serum prepared and sold to plaintiff by defendant veterinary surgeon was an eminently dangerous and poisonous substance, that therefore defendant owed plaintiff duty of exercising greatest care in preparing and hermetically sealing same so as not to permit it to beicome contaminated or permit its chemical action to so change its substance as to inflict injury, to animals for which it was prepared, that defendant so prepared it as to permit it to become contaminated with germs of tetanus or other injurious substance, by reason whereof 90 head of plaintiff’s shoats 'became infected from and died from effects thereof without plaintiff’s fault or negligence, states a cause of action, and suggests plaintiff’s theory of defendant’s negligence or want of care in preparing the virus or serum. Held, further, that plaintiff, by showing serum was properly administered and that malignant edema that caused death of hogs developed at place where serum was injected into the hogs, made out a prima facie case.

*4222. Eviclence — Hogs Killed by Serum — Defendant's Rebuttal of Prima Facie Case, Facts Essential to Re: Careful Preparation, Etc.

In order to rebut a prima facie case of hogs killed by serum, defendant could show serum prepared by approved method, that it was properly tested, bottled, sealed, and labelled, that reasonable care was taken to prevent poisonous or deleterious matter from entering it.

3. Same — Officer to Prove Same Serum Used on Other Hogs With* out Injury, Proper Defense.

In such suit for damages, defendant, after plaintiff’s proof of prima facie case, could show in defense that identical lot of serum used on plaintiff’s hogs had been used on other hogs without resulting injury, and refusal to allow such proof was ■prejudicial error. So held, where evidence showed that spores or bacilli of malignant edema exists o.n the ground, in earth and dirt, may be picked up and carried about by one’s feet or by dust, that they are on skins of animals and there discoverable only by microscopic examination; it being possible also that the spores causing death of plaintiff’s hogs may have been in vessel containing the serum when used, or in the syringe used to inject it, or may have been deposited by wind while it was being 'used.

McCoy, J., dissenting.

Appeal from 'Circuit Court, Bon Homme Count}'. Hon. Robert B. Tripp, Judge.

Action by Dennis Murphy, against the Sioux Falls Serum Company, a corporation, to recover damages resulting from the alleged killing of plaintiff’s hogs by vaccination by serum and virus manufactured 'by defendant. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Reversed.

*Lynch & Doyle,*and *Louis H. Smith,*for Appellant.

*C. C. Puckett,*and *Shull, Gill, Samtmis & Stillwell,*for Respondent.

(i) To point one of the opinion, Respondent cited: 'Shim-era v. Nebraska Serum Co., (Neb.) 169 N. W. 785; Watson v. Augusta Brewing Co., *V2*Ga. 1-21, 1 D. R. A. (N. S.) 1178.

FOLUEY, P. J.

Plaintiff - employed a veterinary surgeon to vaccinate certain hogs for the prevention of hog cholera. The hogs were vaccinated with serum and virus manufactured 'by defendant. Immediately following the' vaccination a considerable number of the hogs contracted malignant edema and died. Plain*423tiff, claiming that the death of his hogs resulted from the impure and poisonous condition of the serum used, brought this action against defendant for the recovery of the loss» of his hogs. Plaintiff had judgment, and defendant appeals.

In his complaint plaintiff alleges:

> “That- the said virus and serum» is an imminently dangerous and poisonous substance, and the defendant, by reason of the facts herein stated, owed a duty to the plaintiff to exercise the greatest of care in preparing the same and in hermetically sealing the bottles in which contained, and in all other respects to so handle the same as not to permit the same to become contaminated with poisonous substances, or permit its own chemical action to so change the substance as to. inflict injury to the animals for which it was so prepared and intended; * * * that the said virus and serum was not free from impurities, but, on the contrary, the said defendant so prepared the same as to permit the same to be or become impure and contaminated with the germs of tetanus or other foreign or injurious substances, by reason whereof 90 of the said shoats became infected from and by means of the injection of said virus and serum and died from the effects thereof, without any fault or neglig'ence on the part of this plaintiff, and notwithstanding that this plaintiff used and exercised due care in the' treatment and care of the said shoats after they 'became so infected and in attempting to save them from the effects of such infection.”

[1] These allegations state a cause of action against defendant, and they also outline and suggest the theory on which plaintiff founds his right of recovery; i. e., that defendant was guilty in some degree of negligence or want of care in preparing or preserving the virus or serum that was used by the plaintiff. Plaintiff proved the use of the serum», that it had been properly administered, and the death of his hogs, and rested. Defendant then moved for a directed verdict. This motion was overruled, and we think properly so. Plaintiff, by showing that the serum was properly administered, and that the malignant edema that caused the death of the hogs developed at the place where the serum was injected into the hog, made out a prima facie case.

[2, 3] In order to rebut this prima facie case, it was competent for the defendant to show that the serum had been prepared *424according 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. Defendant offered to prove these facts, but the evidence offered was ruled out because the evidence, in the form in which it was offered, was incompetent. Defendant then offered to prove that some of the same identical lot of serum that was used on plaintiff’s hogs had been used on other hogs and that no- injury resulted. This was objected to as immaterial; arid the objection sustained. This was error of a prejudicial nature. If it had been shown that some of the same identical serum that was used on defendant’s hogs had been used on other hogs, and that no injurious results followed, the jury would have been warranted in inferring that plaintiff’s hogs contracted the disease which caused their death from some other source than the use of the serum. It is shown by the evidence that the spores or bacilli of malignant edema exist on the ground, in the earth, and in dirt; that they may be picked up and carried about by any one on the feet and are carried about in the dust; that they are also on the skins of animals; and that the only way their presence may be detected is by miscroscopic examination. It is altogether possible that the spores of the disease that caused the death of the hogs may have been in the vessel that contained the serum when it was being used or they ma)^ have been in the syringe that was used to inject the serum into the hogs, or they may have been deposited in the serum by the wind while it was being used.

For the error in excluding the above testimony, a new trial must be awarded.

The judgment and order appealed from are reversed.

McCO'Y, J., dissents on the ground that appellant has pointed out no error.