dissenting.
The opinion says that the plaintiff alleges that the serum was “sold by the defendant, when the same was alleged to have been spoiled and poisonous.” This the plaintiff must prove in order to recover damages.
The opinion says: “Defendant in the case at bar could have met the contentions of plaintiff, had it simply show that the serum was aseptically prepared. # * A record or examination might have disclosed that certain tests had been made for the purpose of ascertaining whether any foreign substances were in the same, and that said medicine was not in a septic condition at the time of delivery.”
It is assumed that the defendant did not do these things, and so it is clear that there is no controversy, and it is unnecessary to refer to plaintiff’s evidence. This places the burden of proof upon the wrong party. *814The syllabus says that the evidence is “examined,” hut there, is nothing in the opinion to indicate that it is at all material What the plaintiff’s evidence might be. It is very doubtful to my mind that the evidence shows that the serum was poisonous.