WENNERHOLM ET AL v. STANFORD UNIVERSITY SCHOOL OF MEDICINE ET AL

Reset A A Font size: Print

District Court of Appeal, First District, Division 1, California.

WENNERHOLM ET AL. v. STANFORD UNIVERSITY SCHOOL OF MEDICINE ET AL.

Civ. 11439.

Decided: June 03, 1941

Vincent W. Hallinan and Emmett R. Burns, both of San Francisco, for appellants. Hester W. Webb, of San Francisco, for respondent L. Stanford Jr. University, etc. Cooley, Crowley & Supple, of San Francisco, for respondent Andrew B. Stockton. Charles V. Barfield, of San Francisco, for respondent Cutter Laboratory.

Plaintiffs appeal from a judgment against them following an order sustaining defendants' demurrers to their fifth amended complaint. The complaint alleged that the plaintiff Cecilia Wennerholm lost her eyesight through taking the drug dinitrophenol, and seeks to hold defendants responsible therefor. The defendants appearing by demurrer are Stanford University School of Medicine, Stanford University Hospital, Lane Hospital, The Board of Trustees of Leland Stanford Junior University and Wallace H. Alexander, Harry Chandler, Leland W. Cutler, Frank P. Deering, W. P. Fuller, Jr., Joseph D. Grant, Herbert C. Hoover, Ira S. Lillick, C. O. G. Miller, John T. Nourse, Francis Price, Paul Shoup, Stuart L. Rawlings and M. C. Sloss as members thereof and individually, L. R. Chandler, Cutter Laboratory, a corporation, and Maurice Tainter.

The charge in the fifth amended complaint is that defendants, “in the business of manufacturing, distributing, selling and dispensing drugs, medicines and chemical compounds, designed and purporting to cure and relieve human sickness, * * * by means of statements and articles caused by said defendants to be printed in newspapers of general circulation throughout the entire State of California, and elsewhere and in divers printed pamphlets and circulars, circulated and disseminated to the general public throughout the said state and elsewhere, and by divers publications in purported medical journals, the precise names and titles and exact contents and tenor of said publications being now unknown to plaintiffs, and being now well known to defendants, did falsely state, represent, allege and say in substance and effect that a certain chemical compound, commonly known as dinitrophenol, was a drug and chemical compound which could be taken internally by human beings and was a harmless drug which would relieve and cure divers illnesses and afflictions of the human body, and in particular would reduce excessive weight and would alleviate obesity without causing physical illness or harm; whereas, in fact and in truth, as they, the said defendants, and each of them * * * well knew, the said dinitrophenol was a drug dangerous, detrimental, poisonous, deleterious to the human body and system, and was inherently dangerous to human life and limb, and liable to cause blindness * * *; that the said defendants * * * did manufacture, sell, dispense and distribute throughout the State of California * * * through the medium of wholesale and retail druggists and physicians * * * large quantities of the said dinitrophenol, and the said plaintiff Cecilia Wennerholm heard, read, believed in and relied upon all and singular the aforesaid false statements and representations * * * and * * * ignorant of the aforesaid falsity of the aforesaid statements and representations * * * and * * * relying upon, all and singular, the aforesaid statements and representations of said defendants, and not otherwise, purchased and took internally the said dinitrophenol for the purpose of reducing over–weight and obesity * * *, on or about the said 9th day of March, 1934, and continued taking the same internally each and every day until and including the 30th day of December, 1934, and that by reason of the taking of said dinitrophenol * * *,” so she claims, she became blind. The plaintiff husband also seeks recovery for moneys expended and incurred by reason of such injuries.

The principal questions raised by the appeal are whether the fifth amended complaint sets forth facts entitling the plaintiff to relief on the ground of fraud, and if so, whether a general demurrer should have been sustained without leave to amend.

Fraud is never presumed; it must always be pleaded and established. Harding v. Robinson, 175 Cal. 534, 166 P. 808. The complaint should substantially show the representation of a material fact. The falsity thereof, the knowledge of such falsity or the making of a representation without sufficient knowledge, the intent to deceive or induce one to enter into a transaction, the participation of the defendant or defendants accused of the fraud, the belief in the truth of the representations, the reliance thereon and the consequent damages to the party or parties injured, are essentials necessary to be specifically alleged or necessarily implied from facts pleaded. A pleading may be sufficient if it states a cause of action against the defendants, although it may be amenable to attack by special demurrer. In that event the defendant is entitled to have the complaint set forth specific averments of fraud or state why a plaintiff is unable to do so. 12 Cal.Jur. 800; 24 Am.Jur. 71; 21 R.C.L. 440. The grounds of demurrer of the individual and various group defendants herein are not identical, particularly in setting forth special grounds of demurrer, but all agree in urging that the fifth amended complaint does not state a cause of action. Some of the special grounds of demurrer, though not phrased in the same language, are substantially the same and are aimed at the same alleged defects.

The complaint does not give adequate information concerning the charges defendants are called upon to meet. It is not alleged whether plaintiff took the drug upon prescription, upon directions, if any, given on the container, or upon any direction at all. Irrespective of a possible defense of superseding cause, these circumstances should be alleged to apprise the defendants of the nature of the charge and to permit them to prepare a defense. The allegation that defendants were the manufacturers of the drug, and gave directions for its use, may be matters peculiarly within the knowledge of defendants, but whether plaintiff wife followed such directions is a subject upon which defendants are entitled to be informed. It is material for them to know whether plaintiffs predicate the complaint for damages upon the quantity, the dosage or the continuous use of the chemical.

The manner in which defendants' knowledge of the dangerous character of the drug is pleaded, by way of recital or parenthetically rather than positively, is subject to demurrer. California Trust Co. v. Gustason, 15 Cal.2d 268, 101 P.2d 74; Carlson v. Farm Land Investment Co., 32 Cal.App. 538, 164 P. 344, 348; Swasey v. de L'Etanche, 17 Cal.App.2d 713, 62 P.2d 753.

The present complaint fails to allege how plaintiff wife, relying upon the alleged published false statements and representations of defendants that the drug was harmless, was induced to use or take the drug when it further appears in the complaint that “the precise names and titles and exact contents and tenor of said publications” are “now unknown to plaintiff, and” are “now well known to defendants”. The allegations are contradictory and inconsistent with the allegation that plaintiff “heard, read, believed in and relied upon all and singular, the aforesaid false statements * * * and not otherwise purchased” the drug.

Plaintiffs seem to be satisfied with the averment that “the precise names and titles and exact contents and tenor of said publications being now unknown to plaintiffs, and being now well know to defendants” is sufficient to identify the alleged false publications. The complaint simply alleges that “the said defendants and each of them” did that of which plaintiffs complain. Assuming that the precise names and titles and exact contents of the publications are “now unknown to plaintiffs”, still the tenor or purport of the publications must be the groundwork upon which it is necessary that plaintiff rely. Assume further that the purport of the advertisement was to the effect that “a certain chemical compound, commonly known as dinitrophenol * * * was a harmless drug”, the complaint is uncertain in the allegation that the chemical compound, dinitrophenol, advertised, was the dinitrophenol manufactured, or that the advertised dinitrophenol was the “certain chemical compound” which plaintiff took internally “for the purpose of reducing overweight and obesity”.

There is no intention herein to hold that a tort action based upon false advertising may not be maintained when properly pleaded. However, this is the fifth amended complaint. A more strict rule should be invoked when heretofore five efforts have proved futile to state a cause of action.

In examining the previous complaints on the allegation of inducement, it is discovered that in a prior amended complaint verified by the husband, one of the plaintiffs, the details and circumstances of the use by the plaintiff wife of this chemical compound are set forth and, as so stated, are inconsistent with the allegation in the present complaint that plaintiff relied upon the advertisements “and not otherwise”. In later amendments, including the present complaint, by reason of the absence of plaintiffs from the county, the verification is by one of their attorneys.

It is true that an amended complaint supersedes the original (Russell v. Ramm, 200 Cal. 348, 254 P. 532), but in determining whether an amended pleading may be truthfully further amended, recourse may be had to prior pleadings. If essential factual matters successively pleaded are so inconsistent upon their face that if one is true the other of necessity must be false, and there appears no explanation in the latter pleading of the contradictory factual allegations, the objections to the pleading should be sustained without leave to amend, particularly if no request therefor is made. Otherwise the complaint would state a sham cause of action. This rule should not be confused with the privilege of the pleader to state several causes of action in conformity with correct rules of pleading. In the present case the complaint purports to state a cause of action based upon fraud. In the verified first amended complaint the following allegations appear: “That on or about the 9th day of March, 1934, the plaintiff Cecilia Wennerholm consulted her family physician in regard to her health, particularly her obesity; that the said physician prescribed medicine for her, to–wit, Dinitrophenol on written Prescription No. 26524, which was filled at the Rodeo Drug Store, Rodeo, California.” In the fifth amended verified complaint, it is alleged that the plaintiff wife relied upon “the aforesaid false statements” [[[[advertisements] “and not otherwise” (italics added).

The rule permitting an examination of previous pleadings is often used to determine whether the statute of limitations has expired. The reason for this rule is to discover the truth. The rule is equally applicable when verified contradictory statements essential to the cause of action are alleged; for example, in a complaint for fraud, wherein it is necessary that the particular facts constituting the fraud must be alleged. Vandervort v. Farmers, etc., Nat.Bk., 7 Cal.2d 28, 59 P.2d 1028. Negligence is an ultimate fact and not a conclusion of law and may ordinarily be pleaded in general terms, but fraud may be alleged in general terms only in the absence of a demurrer. Intent is a question of fact and may be alleged generally (Rosson v. Villanueva, 175 Cal. 632, 634, 166 P. 1004), but allegations of false representations relied upon are insufficient unless probative facts are pleaded. Lewis v. San Francisco, 2 Cal.App. 112, 82 P. 1106; Goodwin v. Whittier, Coburn Co., 170 Cal. 305, 149 P. 583. If it is plaintiffs' suggestion that the allegations in the several complaints are possibly consistent upon the theory that plaintiff “heard, read, believed in and relied upon” the alleged false representations made by defendants by merely taking the “prescribed medicine” under her physician's direction, that is, that she was in fact ignorant of the contents of the compound but relied upon her physician, then defendants are entitled to know through the allegations of the present complaint whether in administering the drug the physician followed directions, if any, given by defendants. “As an element of such a cause of action against the defendants, they must be shown either to have participated in the making of the representation or in some manner to have assumed responsibility for it.” Rhode v. Dock–Hop Co., 184 Cal. 367, 382, 194 P. 11, 17, 12 A.L.R. 437.

It is alleged that defendants manufactured, sold, dispensed and distributed dinitrophenol, but it is not alleged that the dinitrophenol used by plaintiff wife had been manufactured or sold or dispensed or distributed by defendants. Hruska v. Parke, Davis & Co., 8 Cir., 6 F.2d 536, relied upon by appellants, may be readily distinguished from the present case. In the Hruska case, a “Camphor Solution Neutral” was prepared, manufactured, sold and dispensed by the defendants. The opinion in effect held that physicians generally know that camphor prepared with vegetable or animal oil is harmless to the individual, easily absorbed, and often helpful as a stimulant in cases of exhaustion, whereas mineral oil used by defendants in that case in the preparation of the solution could not be absorbed by the human body, and was therefore injurious. Relating the facts in that case, the court said (page 537 of 6 F.2d): “Further, plaintiff * * * was ill and under the care of a physician, who knew of the use made of camphor in solution with an animal or vegetable oil for subcutaneous injection, but who did not know that defendant had prepared its ‘Camphor Solution Neutral’ with mineral oil, and, believing the same to be safe, helpful, and harmless, did inject large quantities of the same into the body and system of plaintiff” (italics added).

It is not clear whether the charge against defendants is merely that they disseminated in printed matter false statements that the drug dinitrophenol was harmless when they knew it to be dangerous, or whether defendants are also charged with having manufactured and distributed the particular quantities or portions of the drug which plaintiff took. Appellants contend that the word “said” cures any uncertainty in the allegation. The complaint alleges that defendants, being in the business of manufacturing, distributing, selling and dispensing drugs, medicines and chemical compounds designed to cure bodily ailments, disseminated to the general public through printed pamphlets, circulars and medical journals the false statement that the drug was harmless. It further alleges that at all times defendants manufactured, sold, dispensed and distributed through the medium of wholesale and retail druggists and physicians “large quantities of the said dinitrophenol” and that plaintiff “purchased and took internally the said dinitrophenol”. It is not alleged that defendants were the exclusive makers of the drug. It cannot be definitely ascertained whether the “said” dinitrophenol refers to the drug manufactured by defendants or to dinitrophenol generally.

The gravity of the failure to properly plead is emphasized when it is found that the fifth amended complaint does not allege from whom plaintiff purchased the drug,––whether it was a retailer or a wholesaler. In prior complaints the place where the drug was obtained and purchased is directly alleged.

It is not to be assumed from the foregoing that it is the intention to hold it is always necessary to allege a previous combination among those charged, or that one confederated or conspired with another. The tort committed is the wrong alleged, which is usually sufficient in pleading; participation may be proof of a conspiracy, which is an ultimate fact often drawn by inference from the evidence. However, in the present case the uncertainty in alleging a definite causation necessitates specific allegations in respect to matters that ordinarily need not be alleged. Defendants are entitled either to a direct allegation that the dinitrophenol manufactured, sold, dispensed and distributed by them was the particular dinitrophenol taken by plaintiff, or allegations from which such fact may be definitely and reasonably ascertained. In the absence of sufficient allegations of causation between the alleged manufacture and distribution of the drug by defendants and its use by plaintiff, no cause of action is stated.

The demurrers specify additional grounds upon which the trial court's ruling might be properly sustained, but in view of the conclusions reached on those already pointed out a discussion of the others becomes unnecessary.

Appellants have declined to amend, and by failing to present such a request are forced to stand on the pleading.

The judgment is affirmed.

I dissent.

The majority opinion holds that the trial court properly sustained the general and special demurrers to the fifth amended complaint. In so holding this court has applied a doctrine of strict construction of pleadings that, in my opinion, has long since been abandoned in this state. It must be remembered that the purpose of a special demurrer is not to require plaintiff to file a complaint that is an artistic masterpiece, but to require the plaintiff to furnish his adversary with a reasonably complete and clear statement of facts upon which the action is predicated. Tested by this standard, and stripping the complaint of all unnecessary allegations, what does this fifth amended complaint allege? It charges that the defendants are in the business of manufacturing, distributing, selling and dispensing drugs and medicines for human use; that by means of statements and articles in newspapers and medical journals, and in pamphlets and circulars disseminated to the public, these defendants falsely represented that a certain drug could be taken internally by human beings; that such drug was harmless and would relieve obesity; that defendants knew the drug was dangerous and poisonous and was inherently dangerous to human life and liable to cause blindness; that the defendants manufactured, sold and dispensed the drug throughout the state; that plaintiff wife heard and read, believed and relied on the false representations; that in reliance thereon she purchased and took internally the drug; that as a result thereof she became blind. It is true that the complaint is not as artistically framed as might be desired. But does not that complaint contain all the essential allegations to state a cause of action against defendants? I think it does.

To this complaint various general and special demurrers were interposed. All defendants did not urge the same grounds of demurrer. Many of the grounds urged are stated in vague and uncertain language. The majority opinion applies the strictest possible rule of interpretation to the complaint, but applies a very liberal rule, indeed, to some of the demurrers. However this may be, the grounds urged in the various demurrers, giving them the same liberal interpretation that I believe should be applied to the complaint, can be classified as follows:

1. That the cause of action is barred by the statute of limitations;

2. That no cause of action has been stated because no privity has been alleged between plaintiffs and defendants;

3. That it would be a defense to the action if the plaintiff wife took the drug upon the prescription of a physician; that this fact was alleged in prior complaints; that its omission from the fifth amended complaint does not cure the pleading; that the fifth amended complaint, in the absence of an explanation as to why this allegation was omitted, must be deemed to include this omitted allegation;

4. The contents of the publications are not sufficiently alleged;

5. That the complaint insufficiently sets forth the relationship, if any, between the defendants, and fails to set forth the particular acts done by them, simply alleging in general terms that “defendants, and each of them”, did the acts of which complaint is made;

6. Connected with No. 5, supra, is the contention in two of the four demurrers (Defendant Tainter and the Stanford University defendants), that several causes of action are improperly united without being separately stated;

7. That it is uncertain whether the complaint charges defendants as the manufacturer of the particular drug which plaintiff used, or merely with making false statements about the drug, generally;

8. That the facts as to plaintiff's taking the drug are too incompletely and insufficiently alleged to be good against special demurrer.

There are other minor points urged in the four demurrers, but the above eight points are the main grounds urged. The majority opinion relies upon some, but not all, of these contentions. In my opinion, none of the contentions is well taken.

1. The contention that the cause of action is barred by the statute of limitations is based on the theory that the fifth amended complaint states a new cause of action from that stated in the original complaint. If the cause of action set forth in the fifth amended complaint is not a new one, the original complaint was admittedly filed in time. In view of the many recent decisions on this question it hardly seems necessary to again review the fundamental principles involved in determining whether an amended pleading states a new cause of action from that contained in the original complaint. It is fundamental that, unless the amended complaint sets forth an entirely different cause of action from the original, the amended complaint, for the purposes of the statute of limitations, must be deemed filed as of the date of the original complaint. In the case of Day v. Western Loan & Bldg. Co., 42 Cal.App.2d 226, 108 P.2d 702, I recently reviewed this very question, and discussed some of the authorities. The authorities there cited are conclusive on this point.

An examination of the various complaints discloses that the original complaint charged that the representations as to the harmless character of the drug were negligently made, while the fifth amended complaint charges that the representations were made knowing they were false, and knowing that the drug was dangerous. Certainly, it cannot be held that the last complaint states an entirely different cause of action under the rules above–discussed. Any contrary intimation in several of the early cases cited by respondents must be deemed to have been long since overruled by the more recent cases on this point.

2. The contention that the complaint fails to state a cause of action because no privity is alleged between plaintiffs and defendants is obviously without merit. The trial court, according to what was said on the oral argument and in the briefs, sustained demurrers to some of the earlier complaints on the theory that in a negligence action no liability exists in the absence of privity. That doctrine has no application to fraud cases, nor has it any application to tort cases involving dangerous instrumentalities. Dahms v. General Elevator Co., 214 Cal. 733, 7 P.2d 1013. That this doctrine applies to the sale of drugs dangerous to human life is amply demonstrated by the authorities. See, 17 Am.Jur., 863; 111 A.L.R. 1241; Hruska v. Parke, Davis & Co., 8 Cir., 6 F.2d 536. The element of privity in either a fraud or negligence action of this type is a false quantity.

3. It is next urged that the first complaints alleged that the drug had been taken on the prescription of a physician; that, although that allegation is omitted from the fifth amended complaint, the allegation must be read into the last complaint; that if that allegation is read into the fifth amended complaint the fact that the drug was taken on the prescription of a physician would be a complete defense as a matter of law. I agree with the holding in the majority opinion that, if an early verified pleading contains an allegation which renders a complaint vulnerable, the defect cannot be cured by simply omitting the allegation, without explanation, in a later pleading. But I vigorously disagree with the contention of respondents that, if the allegation in question is read into the fifth amended complaint, the complaint would then be vulnerable. It seems quite clear to me that one who manufactures and sells a drug dangerous to life and health, well knowing it to be dangerous, as alleged in this complaint, is liable even though the prescribing physician might also be culpable. See annotation 80 A.L.R. 452. The mere fact that the doctor might also be liable would not release defendants from liability. Moreover, it cannot be said, as a matter of law, that the mere fact the drug was prescribed by a physician determines that the doctor was negligent. Obviously, practicing physicians have neither the time nor the facilities for extensive research. They, like the public, must rely on the findings and research of reputable laboratories and hospitals. Whether, in a particular case, the physician is negligent in relying on the representations made by such laboratories and hospitals depends upon the proof in that case.

Certainly, it cannot be held, as a matter of law, that the acts of the doctor, even if negligent, would constitute a superseding cause so as to break the chain of causation. That is obviously a matter of defense which need not, and should not, be anticipated by the plaintiffs. The contrary holding in Young v. Park, Davis & Co., Inc., 49 Pa. Super.Ct. 29, relied upon by respondents, is not sound and should not be followed.

4. Some point is made that the contents of the publications are not sufficiently alleged. This contention is without merit. Inasmuch as the complaint charges the defendants as the manufacturers and sellers of the drug which they distributed knowing it to be dangerous to health and life, the general allegations in reference to the statements alleged to have been made by defendants are clearly sufficient. It would be a harsh and unwarranted rule of law that would bar the plaintiffs from all relief for injury caused by the fraudulent statements of defendants where the plaintiffs cannot now recall in just what publications the statements appeared, and cannot remember their exact context except that such statements conveyed to the reader the belief that the drug was beneficial for obesity and could be taken without danger.

5 and 6. It is next urged that the complaint insufficiently sets forth the relationship, if any, between the defendants, and fails to set forth the particular acts done by them. Connected with this same point is the contention urged in two of the demurrers that several causes of action have been improperly united.

The complaint alleges that the “defendants, and each of them”, did the acts of which complaint is made, that is, made and published false statements concerning the drug in question, and manufactured, sold, dispensed and distributed it. It is my opinion, based on well–settled law, that such allegations, not only are sufficient to state a cause of action, but also state but one cause of action against all defendants. Allegations such as are contained in this complaint are clearly sufficient to charge defendants as tort feasors who acted pursuant to unity of design or agreed purpose. In such event they are co–conspirators, each liable as a joint tort feasor for all the damage suffered by the plaintiff. Loeb v. Kimmerle, 215 Cal. 143, 9 P.2d 199; McPhetridge v. Smith, 101 Cal.App. 122, 281 P. 419; Mox Incorporated v. Woods, 202 Cal. 675, 262 P. 302; 20 Cal.Jur., 510; 24 Cal.Jur., 597; 1 Cal.Jur., 363. No necessity exists for pleading the fact of the conspiracy.

This principle of law is similar to the rule in the law of agency that a complaint against the principal which seeks to hold him liable for the contracts or delicts of his agent may allege a contract or tort committed by the principal without referring to the agent at all. Simpson v. Bergmann, 125 Cal.App. 1, 13 P.2d 531; Resetar v. Leonardi, 61 Cal.App. 765, 216 P. 71. Similarly, under the authorities first cited above, upon a complaint charging defendants and each of them with certain acts, it may be shown at the trial that they were committed pursuant to a common design and agreed purpose without alleging that fact.

The theory behind this rule is quite clear. In actions against co–conspirators the gist of the action is the wrongful act or acts done, rather than the conspiracy or agreement. It is not the agreement which gives rise to liability, but the wrongful acts done pursuant thereto. Acts otherwise lawful, except in rare situations, do not become actionable because done pursuant to agreement. Acts of co–conspirators which give rise to liability are generally acts for which the individual committing them would be liable in the absence of a conspiracy. For this reason, the fact that acts were done pursuant to a conspiracy need not be alleged. The fact of conspiracy is important only as establishing liability of each person who joined in the agreement for the wrongful acts of any of them done pursuant thereto. Bowman v. Wohlke, 166 Cal. 121, 135 P. 37, Ann.Cas.1915B, 1011; 5 Cal.Jur., 528, 533. But the conspiracy need not be expressly alleged in order to hold that what was done was done pursuant to a conspiracy. McPhetridge v. Smith, supra. It is sufficient, as in the case herein, to charge each defendant with having committed all wrongful acts. In Loeb v. Kimmerle, supra, 215 Cal. at page 152, 9 P.2d at page 203, the Supreme Court stated the rule as follows: “Appellant next assails the judgment because, he says, the verdict is against law and gives as his reason therefor the fact that the complaint did not charge or set out facts indicating a conspiracy so as to warn him that he was being held as a party to the assault because he did conspire with Kimmerle. In our discussion of the previous contention we have already observed that ‘it is the civil wrong, not the conspiracy, which constitutes the cause of action.’ Smith v. Blodgett, supra. In Herron v. Hughes, 25 Cal. 555, we find this succinct statement of the rule, which has been quoted with approval in the more recent case of Bowman v. Wohlke, 166 Cal. 121, 135 P. 37, Ann.Cas.1915B, 1011: ‘Where two or more are sued for a wrong alone, it may be necessary to prove previous combination in order to secure a joint recovery, but it is never necessary to allege it, and if alleged it is not to be considered as of the gist of the action. That lies in the wrongful and damaging act done’ * * *. Considerable reliance is had by appellant upon the case of McPhetridge v. Smith, 101 Cal.App. 122, 281 P. 419, but we find no statement therein which indicates that in an action for the tort of two or more persons it is essential to a recovery against an indirect actor and participant therein [to allege] that he confederated and conspired with the one who directly acted. In fact, the case is in full accord with those authorities from which we have already extracted excerpts. Sound reason brings us to the same conclusion. The actionable wrong is the tort committed. The liability is determined by the ultimate fact of whether the defendant participated in the commission of the wrong. The evidence establishing the conspiracy is merely proof of the ultimate fact.” See, also, Ramsey v. Powers, 74 Cal.App. 621, 241 P. 567.

Under this rule the allegations contained in the complaint that the acts were done by “defendants, and each of them”, may be supported at the trial by proof of acts done by any of the defendants pursuant to the common design or conspiracy between them. In view of this well–settled rule of law it seems quite clear to me that the plaintiffs were not required to allege which of the defendants manufactured the drug, who sold it, who dispensed or distributed it, or who made the false statements concerning it. The law does not require, in a case like the one here involved, that the plaintiffs allege the particular acts of each defendant, nor is it required that the plaintiffs allege the relationship existing between the defendants.

7 and 8. It is next urged that it is uncertain whether the complaint charges defendants as the manufacturers of the particular drug which plaintiff wife used, or with merely making false statements about the drug. It is also contended that the facts as to the taking of the drug are too incompletely and insufficiently alleged to be good against special demurrer.

These two contentions can be considered together. It must be conceded that the complaint is not as clear as might be desired on the question as to whether the defendants are charged with manufacturing the particular drug taken by plaintiff wife, or whether they are simply charged with making false statements about the drug. However, reasonably construed, the complaint, in my opinion, is sufficient. The allegations are quoted in the majority opinion. After alleging that the defendants are in the business of manufacturing, distributing and selling drugs and medicines designed to cure bodily ailments, and, after setting forth that defendants knowingly made false statements concerning this particular drug in printed pamphlets and circulars, and that plaintiff wife relied upon such statements, the complaint goes on to allege that the defendants did manufacture, sell, dispense and distribute through the medium of wholesale and retail druggists and physicians “large quantities of said dinitrophenol”, and that plaintiff wife “purchased and took internally the said dinitrophenol” for the purpose of reducing obesity. This sufficiently alleges that the drug taken by plaintiff wife was the drug manufactured and sold by defendants, if such allegation is necessary. Certainly these allegations are as clear and certain as the demurrers filed by the respective respondents on this point.

The majority opinion makes much of the fact that the complaint fails to disclose whether plaintiff took the drug on prescription, where she bought it, and whether she took the drug upon directions, if any, given on the container, or upon any direction at all. What is the necessity for alleging these facts? The plaintiffs allege, in no uncertain language, that defendants knowingly and fraudulently made false statements concerning the drug; that “relying upon, all and singular, the aforesaid statements and representations of said defendants, and not otherwise,” the plaintiff wife purchased and took internally the drug, and that as a direct result she became blind. That is all that was necessary. If it is a fact that her doctor or druggist were negligent, or that she took the drug improperly or in violation of directions, these things, at most, are matters of defense which the plaintiff need not, and should not, anticipate.

The majority opinion assumes that the complaint is based solely on the theory of fraud. If this assumption is correct, the complaint is clearly sufficient. The allegations necessary to support a fraud action are set forth in the majority opinion. This complaint alleges every necessary fact. However, a reading of the complaint demonstrates that, although the basic theory of recovery is predicated on fraud, the complaint also states a cause of action for negligence. As already pointed out in this dissent, the lack of privity would not defeat such an action.

The problems presented on this appeal are strikingly similar to those involved in Hruska v. Parke, Davis & Co., supra. The Circuit Court of Appeals was there required to pass upon the question as to whether the trial court had properly sustained a demurrer to a complaint similar in many respects to the one here involved. What was said in that opinion in holding the complaint sufficient is equally applicable here. On page 537 of 6 F.2d it is stated:

“Do the facts well pleaded in the petition by plaintiff state an actionable controversy by plaintiff with defendant? The defendant says ‘No,’ to this question, because it says the cause of action as pleaded is bottomed upon negligence, and, as there is no privity of contract between the defendant manufacturer of the solution and plaintiff, there is no neglect of duty owed by defendant to plaintiff, hence no negligence.

“A careful reading and analysis of the pleading of plaintiff will disclose the action as pleaded to be not entirely based on negligence, but to possess many, if not all, the elements of an action for fraud, in which the element of privity of contract would not be an essential one. * * *

“However, it is not necessary in this case to go farther than to ascertain if the facts well pleaded constitute any cause of action whatever, either for negligence, or for fraud, or both combined, as the only objection to the pleading which is here involved, as determined by the trial court, was the defect of such issuable facts in the pleading as will warrant a recovery by plaintiff. However, should the case be regarded solely as one for negligence, still the absence or want of privity of contract is not, in our judgment, fatal to the pleading. It must be borne in mind this is not the usual case of manufacture and sale discussed by the authorities. On the contrary, defendant in this case is conducting a highly technical and specialized business, that of a manufacturing chemist. The products so prepared by it are placed on the market, to be purchased and employed in curing the ills of the human body and in preserving human life. The defendant deals with the public to be treated with its preparations and drugs, not on an equal footing, but with the understanding the public will trust to the superior intelligence and general knowledge of defendant, its agents and employés, in the manufacture and preparation of its products; also, when its compounds, drugs, and preparations are placed on the market, that they are safe, harmless and beneficial in use. In other words, the public relies on the truth of such statements employed in advertising by the defendant, and does not seek expert advice from others regarding the propriety of the use of the commodities defendant has manufactured and placed on the market. Defendant company is constantly dealing with human health and human life. It manufactures and sells compounds and drugs represented to be harmless when employed as directed, and, being so represented to the public, they must be, as represented, harmless in use. Health is too dear, and life too sweet, and consequences too great, to admit of either carelessness or mistake in manufacture or fraud in inducing the sale of the same.”

In my opinion, the judgment should be reversed.

WARD, Justice.

I concur: KNIGHT, J.