(dissenting) .
I regret that I am unable to concur in Judge STEWART’s excellent opinion in this case.
The plasma was a drug. If it contained any filthy substance, it was adulterated, and its sale was prohibited under the Tennessee statute, as is so clearly set forth in the majority opinion. Typhoid bacilli, absorbed by live oysters, render them filthy. United States v. Sprague, D.C., 208 F. 419, cited in the majority opinion. In the similar case of clams, it is impossible to ascertain whether they are infected with typhoid bacilli, unless each clam is subjected to a bacteriological examination by microscope ; and it is obviously impossible for producers or vendors to know that they are not infected with typhoid. Kenower v. Hotels Statler Co., 6 Cir., 124 F.2d 658, 660.
The fact that a substance, contained in a drug, cannot be perceived by a microscope, would seem to have no bearing upon whether it is a filthy substance. Before microscopes, typhoid bacilli, absorbed by oysters, would render them filthy. In the same way, the virus of serum hepatitis contained in plasma renders it filthy, even though it cannot be seen by a microscope; and I would consider this to be the case as a matter of law. Appellee assumed no risk.
In my view, the judgment should be affirmed.