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of Agriculture of all fertilizers sold in the Easton Cotton Oil Co. 150 N. C. 150, 134 state, and makes the certificate of the state Am. St. Rep. 899, 63 S. E. 676, citing Par. chemist prima facie evidence of their con- ker v. Fenwick, 138 N. C. 209, 50 S. E. tents. We are of the opinion that, notwith-627; Marsh v. McPherson, 105 U. S. 709, standing the stipulation as to nonliability 26 L. ed. 1139; Huyett-Smith Mfg. Co. v. for results, evidence of the effect of any Gray, 129 N. C. 438, 57 L.R.A. 193, 40 particular fertilizer upon crops is compe. S. E. 178. The principle is thus stated in tent, under certain conditions, to prove that 35 Cyc. p. 468: it did not contain the guaranteed ingredi- “The general rule as to the measure of ents or in the proportion specified in the damages on a breach of warranty is that label put on the bag.

the buyer is entitled to recover the difThe court, in Jones v. Cordele Guano Co. ference between the actual value of the 94 Ga. 14, 20 S. E. 265, referring to a con- goods and what the value would have been tract similar to the one in question, said: | if the goods had been as warranted, and

"While it is true that the note sued on in in the application of the rule it is held that the present case contained an express stipu- the fact that the goods were actually worth lation that the makers purchased on their the price which was paid for them is imown judgment and waived any guaranty material. The difference between the puras to the effects of the fertilize: on their chase price and the actual value cannot be crops, think they were nevertheless regarded as the measure of damages, as in entitled to show that their crops derived such case the purchaser recovers too small no benefit from the use of the fertilizer in a sum if he has made a bad bargain and question. It was competent for them to paid more than the goods were worth, and do this, not for the purpose of repudiating too great a sum if he has made a good baror varying the terms of their written con gain, paying less than the goods were worth. tract, or of holding the guano company to It is true that in some cases the rule has a guaranty it had expressly declined to been stated that the measure of damages make, but to show that in point of fact is the difference between the purchase price the guano did not come up to the guaranteed and the actual value of the goods, but in analysis branded on the sacks, as required nearly all of these cases the theory unby law. In other words, it was the right doubtedly is that in accordance with the of the defendants to show that this guano general rule, if there is no other evidence did not contain the chemical ingredients of the actual value of the goods, the purset forth in that analysis. If the guano chase price will be regarded as such value." failed to produce any beneficial effect on The elementary rule, as above stated, is the crops under favorable auspices, this the best rule, leaving the price to be confact would at least tend to show it did not sidered, when necessary, in the final adcontain the fertilizing elements in the pro-justment between the parties to ascertain portions specified in the analysis branded what is due by one to the other on account on the sacks."

of the transaction, when there has been a But when there is an offer of such evi- breach of the warranty. We have mendence, the kind of soil, manner of cultiva- tioned this subject for the purpose of showtion, accidents of season, and other perti. ing that no part of the recovery, under this nent facts should be first shown, so that contract, should be assessed for the failure a foundation may be laid for admitting tes of crops, as there is an express stipulation timony of actual production, with a view that plaintiff should not be held liable for of disparaging the fertilizers, and the jury any results from the use of the fertilizer, should be carefully instructed that they can and the charge, in this respect, was erroconsider the evidence only for the purpose i neous. This court said in Armour Ferof showing the absence of the guararteed tilizer Works v. McLawhorn, 158 N. C. 274, ingredients or the represented quantities 276, 73 S. E. 883: of each, and not at all for the purpose of "The deficiency in value was allowed him assessing damages, either directly or in- in abatement of price. The claim of condirectly, because of any loss or diminution sequential damages resulting in the alleged of the crops, as the measure of damages shortage in his crop was properly disaldepends upon quite a different principle. lowed by the court. Carson v. Bunting,

The extent of the recovery must be re- 154 N, C. 532, 70 S. E. 923, where the court stricted to the difference, not necessarily holds that the measure of damages is in between the price and the value of the the abatement of the price, as is also proarticle purchased, but to the difference be- vided by Revisal, § 3949.” tween the article delivered under the con- It must not be understood that we are tract of warranty and its value or market dealing with a case where a farmer is suing price if it had been such as it was war- his merchant for a breach of contract in ranted to be. Hardie-Tynes Mfg. Co. v.'the sale of fertilizers, alleging that they weré deficient in quality, and thereby he, ference between the two cases. If the merhas sustained a loss or diminution of his chant who buys from the fertilizer comcrop, in the cultivation of which it was pany chooses to sell to the farmer with a used. The sale in such a case may have warranty different from that which has been made upon an express or an implied been given to him, and broader in its scope, warranty as to the quality of the fertilizer, i he may do so, but he cannot thereby inand does not fall within the principles we crease the liability of the fertilizer comhave discussed. With reference to such a pany upon its warranty to him. That will case, Justice Hoke said in Tomlinson & Co. remain as fixed by the terms of the contract, v. Morgan, 166 N. C. 557, 82 S. E. 953 : and will not be altered by any future con

"The court does not understand that duet or action of the merchant in his dealplaintiff seriously contends that a warranty ings with others. has not been established by the verdict, but The effect of the judge's instruction upon it is chiefly urged for error that there is the third issue, which, by the way, is not no proper evidence tending to show a breach ) in proper form, was to add a term to the of the warranty-i, e., that the guano sold contract not inserted therein by the parties, was off grade; and, second, that, under our and to charge the plaintiff upon a warranty, decisions, a loss claimed in diminution of for the performance of which he was not the crop is too remote and uncertain to be bound, and for any breach of which he was made the basis for an award of damages. therefore not liable. Undoubtedly, a counterclaim of this char- It has been suggested that the court, in acter presents such an inviting field for Jones v. Cordele Guano Co. supra, decided litigation and is so liable to abuse that it that evidence as to the use of the fertilizer should not be entertained unless it is clearly upon lands and its effect upon crops was established that there has been a definite admissible only as corroborative or discredbreach of the warranty, and satisfactory iting testimony, after there had been evievidence is offered that the loss claimed is dence of an analysis of the fertilizer; but directly attributable to the breach, and we think it is substantive evidence, and for the amount can be ascertained with a rea- the reason given by the court in that case sonable degree of certainty. While the į for admitting it as corroborative. It has court should always be careful to see that been held to be substantive evidence in these rules are not transgressed to the in. Tomlinson & Co. v. Morgan, supra. Cerjury of a litigant, when the facts in evi-vantes wisely said, in his Don Quixote, that dence clearly meet the requirements, au- "the proof of the pudding is the eating," thority in this state is to the effect that and so by analogy the proof of the ferthe loss suffered in diminution of a given tilizer is the using of it. It is practical crop, when it is clearly attributable to a instead of scientific proof, but the evidence definite breach of warranty as to the quality should be admitted cautiously and with of a fertilizer, that it is within the contem- proper and full safeguards, so as, by elimplation of the parties and capable of being inating the speculative elements, show ascertained with a reasonable degree of cer- clearly the causal connection between the tainty, may be made the basis for an award fertilizer used and the loss or diminution of damages"-citing Herring v. Armwood, of the crop. Unless the foundation for such 130 N. C. 177, 57 L.R.A. 958, 41 S. E. 96; proof is well laid, it lacks in probative Spencer v. Hamilton, 113 N. C. 49, 37 Am. force, as it has not been removed from the St. Rep. 611, 18 S. E. 167.

realm of speculation and is only conjectural, The Tomlinson Case, it has been sug. and, of course, unreliable. gested, is somewhat in conflict with our We direct that there must be a new trial, views, but we think it clearly is not, but because of the errors indicated. entirely consistent therewith. In that case it appeared that there was an express warranty "that the fertilizer was suitable for tobacco," which meant, if properly con


COURT. strued, that if it was used in the cultivation of tobacco it would produce good results BENNIE LORIN EASLER, by Guardian and increase the yield. Besides, there was

ad Litem, Respt., no limited warranty as in our case, and no restriction of liability for results, and it ap- COLUMBIA RAILWAY, GAS, & ELECpeared that a member of the plaintiff's

TRIC COMPANY, Appt. firm had said that he had seen

as much as he had wanted to see, and he thought

- S. C. 84 S. E. 417.) there must have been a ake made

Carriers compulsory treatment of the factory by putting in acid instead of

passenger liability. phosphate. These facts show a radical dif- 1. A carrier which, after injury to a boy

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upon its car, takes him, against the protest , derlandsche S. B. Maatschappy Co. 107 N. Y. of his guardian, to its own surgeon for 228, 1 Am. St. Rep. 815, 13 N. E. 781; treatment, is liable for any injury which Union P. R. Co. v. Artist, 23 L.R.A. 581, 9 the surgeon may inflict upon him through C. C. A. 14, 19 U. S. App. 612, 60 Fed. 365; malpractice, whether it used care in the selection of a surgeon or not.

Big Stone Gap Iron Co. 'v. Ketron, 102 Va.

23, 102 Am. St. Rep. 839, 45 S. E. 741; Same aggravation of injury by treat. Pittsburgh, C. C. & St. L. R. Co. v. Sullivan,


2. A carrier is liable for injury to a pas- 141 Ind. 83, 27 L.R.A. 840, 50 Am. St. Rep. senger thrown from its car through its 317, 40 N. E. 138; O'Brien v. Cunard S. S. sole negligence, although proper recovery Co. 154 Mass. 272, 13 L.R.A. 329, 28 N. E. from the injury may have been prevented 266; Elliott, Railroads, 2d ed. $ 223, 3d ed. by the incompetency of the attending sur- $ 1388; Guy v. Lanark Fuel Co. 72 W. Va. geon.

728, 48 L.R.A.(N.S.) 536, 79 S. E. 941;

Lindler v. Columbia Hospital, 98 S. C. 25, (March 10, 1915.)

81 S. E. 512. PPEAL by defendant from a judgment

Mr. J. B. McLauchlin for respondent. A

of the Common Pleas Circuit Court for Richland County in plaintiff's favor in an

Gage, J., delivered the opinion of the

court: action brought to recover damages for personal injuries alleged to have been caused

Action for tort to the person; verdict for by defendant's negligence. Affirmed.

plaintiff for $1,000; appeal by defendant. The facts are stated in the opinion.

History: The electric car was running Messrs. Elliott & Herbert, for appel- towards College place in the northern sublant:

urbs of Columbia. The plaintiff, a boy The employer is not responsible for the fourteen years old, was a passenger. He negligence or malpractice of the physician rang for the car to stop, rose and went or surgeon, provided the employer has dis- forward to the platform occupied by the charged his duty by exercising reasonable motorman, and got upon the step. He was care to the end of employing a physician thrown to the ground and his shoulder bones or surgeon who possesses the ability and injured. His mother, living hard by, came skill ordinarily possessed by other mem

out to the scene, and, it is alleged, desired bers of his profession.

to take the boy into her house. The conYoungstown Park & F. S. R. Co. v. Kess. ductor, it is alleged, demurred, and carried ler, 84 Ohio St. 74, 36 L.R.A.(N.S.) 50, 95 the boy to the end of the line and back into N. E. 509, Ann. Cas. 1912B, 933; Quinn v.

the city to the company's surgeon for treatKansas City, M. & B. R. Co. 94 Tenn. 713, ment, as he was bound to do by the com28 L.R.A. 554, 45 Am. St. Rep. 767, 30 S. pany's rules. He was treated by that surW. 1036; Laubheim v. De Koninglyke Ne. geon and discharged for well. Note. Duty and liability of one other & St. R. Co. — Ind. App. —, 104 N. E.

than a physician or surgeon who con- 866; Wharton v. Warner, 75 Wash. 470, 135
tracts to provide medical or surgical Pac. 235; Hillyer v. St. Bartholomew's
attention for another.

Hospital, 78 L. J. K. B. N. S. 958 [1909]
2 K. B. 820, 101 L. T. N. S. 368, 25 Times

L. R. 762, 53 Sol. Jo. 714; Foote v. Greenock
Earlier cases covering the subject under Hospital [1912] S. C. 69.
annotation will be found in note attached And it will be noticed that this rule is
to Youngstown Park & F. S. R. Co. v. Kes expressly admitted in EASLER V. COLUMBIA
sler, 36 L.R.A. (N.S.) 50. Later cases are in R. GAS & ELECTRIC Co., the liability for
accord with the rule which received the unan- malpractice in that case being predicated
imous support of the authorities collected in on the fact that the railroad company took
the earlier note, that if one who assumes to the injured boy to its physician against the
furnish medical or surgical attention to an protest of his mother.
other acts in good faith and with reasonable And a knowledge of the failings of the
care in the selection of a physician or sur- physician or surgeon must be brought home
geon, and has no knowledge of incompeteney to a railway company employing him. His
or lack of skill or want of ability on the general reputation may be so bad that the
part of the person employed, but selects an law will impute knowledge; but nothing
authorized physician in good standing in short of this will make it liable. Atlantic
his profession, he has fulfilled the full meas. Coast Line R. Co. v. Whitney, 62 Fla. 124,
ure of his contract and cannot be held liable 56 So. 937.
for any want of skill on the part of the per- And so, where the evidence showed that a
son employed. Allegar v. American Car & hospital exercised reasonable care in select-
Foundry Co. 124 C. C. A. 319, 206 Fed. 437, ing a surgeon, it was held in Wharton v:
affirming 198 Fed. 447; Atlantic Coast Line Warner, 75 Wash. 470, 135 Pac. 235, that
R. Co. v. Whitney, 62 Fla. 124, 56 So. 937; it could not be held responsible for his
Tippecanoe Loan & T. Co. v. Cleveland, C.' negligence where, in performing the opera-

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There are two exceptions, but the second | legation of negligent employment, nor did was withdrawn, and the first only was ar- the answer contain any allegation of comgued, and on it turns the case.

petency. And it is true that no witness for The defendart's fifth request was this: the defendant was asked to testify to the “In the complaint it is alleged that the de competency of the surgeon; but no witness fendant, through its doctor, negligently for the plaintiff testified directly to his intreated the plaintiff. I charge you there competency, and the burden of proving that is no evidence in this case which will war- was on the plaintiff. There was no referrant you in giving any verdict on account ence in the court's charge to the matter of of such alleged treatment on the part of negligent employment. the physicians employed by defendant.” A critical construction of the request

The court declined to charge the request, doubtless sustains respondent's view; but and that is the issue here.

the exception, made after the trial, it is The exception thereabout indicates the true, suggests the idea; and we shall conerror of the refusal, to wit: “The error sider the issue now suggested in appellant's being that there was no act of omission argument, but in the light of the testimony or commission shown on the part of de- of the witnesses. fendant's physician, and defendant had no It is true that if a carrier shall (1) power to direct the medical services of its employ a surgeon to treat a patient, (2) physician, and was only chargeable with and if the surgeon be reasonably competent, reasonable care in employing said physician, (3) and if the service to the patient be and the evidence therefore failed to show gratuitous, and (4) if the surgeon neglect any negligence, and the request was proper, the patient, then the master is not liable and should have been charged."

for the ill consequences to the patient. In The exact issue the appellant has made in that case, if the carrier owed any duty, he argument is this: That the defendant ac- performed it when he selected a reasonably quits itself when it has used ordinary care competent surgeon,

In that case the carin the gratuitous employment of a reason- rier, as the alleged master of the surgeon. ably competent surgeon; and, that done, is not held liable for maltreatment, and on the company is not liable for the surgeon's the theory that he has no power to direct tort.

the surgeon about his work. The respondent contends at the outset But in the case at bar there was testithat the request embodied no such idea, and mony-denied by the defendant, it is true that no such idea was expressed in argu-| --that the boy was taken away from the ment to the court below, and that the issue mother against her consent. Her testimony which it embodied may not now be made is short, and this is the pith of it: “I here.

went out immediately, and the conductor It is true the complaint contained no al. had the boy up and was pushing him to the tion of curettement of the uterus, he al. | X-ray picture of the injury of an employee, lowed a metallic spring, 12 inches long, to who protests against such action, but finally be detached from an instrument used in consents, if, in the taking of such picture, packing, and left in the body of the patient. injury results to the employee, the physician

And in Hillyer v. St. Bartholomew's Hos. is the agent or servant of the telephone compital 78 L. J. K. B. N. S. 958 (1909) 2 K. pany, and the rule of respondeat superior B. 820, 101 L. T. N. S. 368, 25 Times L. R. applies. Jones v. Tri-State Teleph. & Teleg. 762, 53 Sol, Jo. 714, it was held that there Co. 118 Minn. 217, 40 L.R.A. (N.S.) 485, 136 being no evidence of any breach of duty N. W. 741, 4 N. C. C. A. 832. of using reasonable care in selecting as mem- A hospital conducted as a charity is not bers of the staff persons who were competent, liable to a patient paying for board a sum either as surgeons or as nurses, properly less than the per capita cost of maintenance to perform their respective parts in the sur- for an unauthorized operation upon him by gical operations, the governors of the hos- a physician of its staff, serving without pay pital were not liable for injury to a patient, from it, although the operation constitutes during an operation.

an assault for which the physician may be And following Hillyer v. St. Bartholomew's personally liable, since the relation between Hospital as authority, it was held in Foote the hospital and the physician is not that v. Greenock Hospital (1912] S. C. 69, that, of master and servant. Schloendorff v. Soapart from special contract, the managers ciety of New York Hospital, 52 L.R.A. (X.S.) of a public hospital are not responsible to 505. the patients whom they receive (whether Generally as to liability of charitable paying or not paying) for unskilful or neg. institutions for personal injury, see note ligent medical treatment, provided they to Schloendorff v. Society of New York Hoshave exercised due care in the selection of a pital, and notes therein referred to. competent staff.

Generally as to liability of master for Where, for its own purposes, a telephone negligence of physician employed, see Index company employs a physician to take an to L.R.A. Notes, § 59.

J. H. B.


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Conductor said his arm was broke. I! SOUTH DAKOTA SUPREME COURT. kept pleading with him to let me take him to the house, and he said it was against MINNEAPOLIS THRESHING MACHINE

COMPANY, Appt., the rules of the company to let him go without some of the officers was there. They put him back on the car and took him to ROBERTS COUNTY, South Dakota, Respt. the end of the line-about three quarters

(34 S. D. 498, 149 N. W. 163.) of a mile. I protested against this. He didn't offer to bring me back with the boy. Mr. Davis, who works for the company,

Tax - priority to purchase money mort

gage. brought the boy back home later. His arm

1. Under a statute making all taxes upon was broken; he was bandaged up and suf- personal property a first lien on all personal fered awful. Dr. Boyd came out one time. property of the person against whom they He said for the boy to come down every are assessed, an assessment of a personal day. Boy started back to work, and father property tax will take precedence, as to the had to stop him. I never told the company entire tax on the owner's personalty, of an not to take him and treat him free, and did existing chattel mortgage given to secure not tell them to do so. They gave me no

the purchase price a particular article of

machinery. chance to do so. The boy kept on going

Mortgage - priority of tax lien existdown there to be treated.”

ing statute. If that be true, and of it the jury judged, then there was evidence which warrants of a statute existing when his mortgage was

2. A chattel mortgagee cannot complain the jury in giving a verdict on account of taken, which makes all personal taxes a lien the treatment of the physicians. (Language on all personal property of the taxpayer. of request.)

It may be the duty of the carrier to call (Whiting and McCoy, JJ., dissent.) a surgeon to serve an injured passenger in a sudden emergency; but it is not the duty

(October 29, 1914.) of the carrier to do so when the natural

Note. guardian of the injured passenger is pres

Priority of lien for personal

taxes over pre-existing liens on propent and dissents therefrom.

erty of the taxpayer. It is manifest the defendant had no right to the custody of the boy against the No attempt has been made to collect the mother's consent; the forcible taking of cases passing upon the priority of taxes over custody was in itself a wrong; the relation the lien of an execution or attachment. of carrier and passenger was not immedi- Generally, as to priority of claims for taxes ately terminated; and, if the boy was in- against the assets of a debtor, see note to jured while thus in defendant's custody, Bibbins v. Clark, 29 L.R.A. 278. no matter if by a surgeon, then the de

On personal property. fendant is liable for such injury. The carrier is estopped to deny that it inflicted the The proposition expressly held by the injury. The court, in effect, so charged the court in MINNEAPOLIS THRESHING MACH.

Co. v. ROBERTS COUNTY, that it is competent jury, and there is no exception thereabout. Thereupon follows another inquiry neces personal tax superior to a pre-existing lien

for the legislature to declare a lien for sary to be proved to sustain the plaintiff's

on specific items of personal property of the action: Was the boy injured by malprac-owner, seems to be generally conceded, or at tice of the surgeon ? Certain surgeons swore least not denied by the cases, although none that he was; three swore that he was not; of the other cases has construed the local and betwixt them the jury decided for the statute to give a lien for the whole amount plaintifl'.

of personal taxes priority over a pre-existBut the verdict may be sustained inde. ing lien upon specific personal or real proppendently of the alleged tort of the surgeon. erty of the person against whom the tax is

assessed. In this connection there is an If the plaintiff was flung from the car and obvious difference between the situation as his shoulder broken, and if he was

so to real property taxes and that as to perthrown by the sole negligence of the com-sonal property taxes. The lien on real proppany, then the defendant is liable.

erty attaches to each particular tract for The verdict is conclusive against the de- the portion of the tax assessed against it, fendant on those issues. In any view of while in the case of personal property the the case, the verdict must be sustained, lien for taxes is not confined to the specific and the judgment affirmed.

articles assessed, but attaches to all the per

sonal property of the taxpayer. The extenIt is so ordered.

sion of a preference to the lien for real

property taxes over a pre-existing lien on Gary, Ch. J., and Hydrick, Watts, and the property merely imposes a burden of Fraser, JJ., concur.

definite and comparatively small amount, the

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