Am. St. Rep. 899, 63 S. E. 676, citing Parker v. Fenwick, 138 N. C. 209, 50 S. E. 627; Marsh v. McPherson, 105 U. S. 709, 26 L. ed. 1139; Huyett-Smith Mfg. Co. v. Gray, 129 N. C. 438, 57 L.R.A. 193, 40 S. E. 178. The principle is thus stated in 35 Cyc. p. 468: 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 chemist prima facie evidence of their contents. We are of the opinion that, notwithstanding the stipulation as to nonliability for results, evidence of the effect of any particular fertilizer upon crops is competent, under certain conditions, to prove that it did not contain the guaranteed ingredients or in the proportion specified in the label put on the bag. "The general rule as to the measure of damages on a breach of warranty is that 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, we 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 crops under favorable auspices, this fact would at least tend to show it did not contain the fertilizing elements in the proportions specified in the analysis branded on the sacks." The elementary rule, as above stated, is the best rule, leaving the price to be considered, when necessary, in the final adjustment between the parties to ascertain what is due by one to the other on account 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 testimony of actual production, with a view of disparaging the fertilizers, and the jury should be carefully instructed that they can consider the evidence only for the purpose of showing the absence of the guaranteed ingredients or the represented quantities of each, and not at all for the purpose of assessing damages, either directly or indirectly, because of any loss or diminution of the crops, as the measure of damages depends upon quite a different principle. The extent of the recovery must be restricted to the difference, not necessarily between the price and the value of the article purchased, but to the difference between the article delivered under the contract of warranty and its value or market price if it had been such as it was warranted to be. Hardie-Tynes Mfg. Co. v. of crops, as there is an express stipulation that plaintiff should not be held liable for any results from the use of the fertilizer, and the charge, in this respect, was erroneous. This court said in Armour Fertilizer Works v. McLawhorn, 158 N. C. 274, 276, 73 S. E. 883: "The deficiency in value was allowed him in abatement of price. The claim of consequential damages resulting in the alleged shortage in his crop was properly disallowed by the court. Carson v. Bunting, 154 N. C. 532, 70 S. E. 923, where the court holds that the measure of damages is in the abatement of the price, as is also provided by Revisal, § 3949.” It must not be understood that we are dealing with a case where a farmer is suing his merchant for a breach of contract in the sale of fertilizers, alleging that they were deficient in quality, and thereby he has sustained a loss or diminution of his crop, in the cultivation of which it was used. The sale in such a case may have been made upon an express or an implied warranty as to the quality of the fertilizer, and does not fall within the principles we have discussed. With reference to such a case, Justice Hoke said in Tomlinson & Co. v. Morgan, 166 N. C. 557, 82 S. E. 953: "The court does not understand that plaintiff seriously contends that a warranty has not been established by the verdict, but it is chiefly urged for error that there is no proper evidence tending to show a breach of the warranty-i. e., that the guano sold was off grade; and, second, that, under our decisions, a loss claimed in diminution of the crop is too remote and uncertain to be made the basis for an award of damages. Undoubtedly, a counterclaim of this character presents such an inviting field for litigation and is so liable to abuse that it should not be entertained unless it is clearly established that there has been a definite breach of the warranty, and satisfactory evidence is offered that the loss claimed is directly attributable to the breach, and the amount can be ascertained with a reasonable degree of certainty. While the court should always be careful to see that these rules are not transgressed to the injury of a litigant, when the facts in evidence clearly meet the requirements, authority in this state is to the effect that the loss suffered in diminution of a given crop, when it is clearly attributable to a definite breach of warranty as to the quality of a fertilizer, that it is within the contemplation of the parties and capable of being ascertained with a reasonable degree of certainty, may be made the basis for an award of damages"-citing Herring v. Armwood, 130 N. C. 177, 57 L.R.A. 958, 41 S. E. 96; Spencer v. Hamilton, 113 N. C. 49, 37 Am. St. Rep. 611, 18 S. E. 167. If the mer ference between the two cases. chant who buys from the fertilizer company chooses to sell to the farmer with a warranty different from that which has been given to him, and broader in its scope, he may do so, but he cannot thereby increase the liability of the fertilizer company upon its warranty to him. That will remain as fixed by the terms of the contract, and will not be altered by any future conduct or action of the merchant in his dealings with others. The effect of the judge's instruction upon the third issue, which, by the way, is not in proper form, was to add a term to the contract not inserted therein by the parties, and to charge the plaintiff upon a warranty, for the performance of which he was not bound, and for any breach of which he was therefore not liable. It has been suggested that the court, in Jones v. Cordele Guano Co. supra, decided that evidence as to the use of the fertilizer upon lands and its effect upon crops was admissible only as corroborative or discrediting testimony, after there had been evidence of an analysis of the fertilizer; but we think it is substantive evidence, and for the reason given by the court in that case for admitting it as corroborative. It has been held to be substantive evidence in Tomlinson & Co. v. Morgan, supra. Cervantes wisely said, in his Don Quixote, that "the proof of the pudding is the eating," and so by analogy the proof of the fertilizer is the using of it. It is practical instead of scientific proof, but the evidence should be admitted cautiously and with proper and full safeguards, so as, by eliminating the speculative elements, to show clearly the causal connection between the fertilizer used and the loss or diminution of the crop. Unless the foundation for such proof is well laid, it lacks in probative force, as it has not been removed from the realm of speculation and is only conjectural, and, of course, unreliable. We direct that there must be a new trial, because of the errors indicated. SOUTH CAROLINA SUPREME COURT. The Tomlinson Case, it has been suggested, is somewhat in conflict with our views, but we think it clearly is not, but 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 construed, 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 no limited warranty as in our case, and no restriction of liability for results, and it appeared that a member of the plaintiff's firm had said that he had seen as much as he had wanted to see, and he thought there must have been a mistake made in the factory by putting in acid instead of phosphate. These facts show a radical dif ad Litem, Respt., V. COLUMBIA RAILWAY, GAS, & ELECTRIC COMPANY, Appt. (S. C., 84 S. E. 417.) Carriers compulsory treatment of passenger liability. 1. A carrier which, after injury to a boy PPEAL by defendant from a judgment of the Common Pleas Circuit Court for Richland County in plaintiff's favor in an action brought to recover damages for personal injuries alleged to have been caused by defendant's negligence. Affirmed. The facts are stated in the opinion. lant: The employer is not responsible for the negligence or malpractice of the physician or surgeon, provided the employer has discharged his duty by exercising reasonable care to the end of employing a physician or surgeon who possesses the ability and skill ordinarily possessed by other members of his profession. derlandsche S. B. Maatschappy Co. 107 N. Y. 228, 1 Am. St. Rep. 815, 13 N. E. 781; Union P. R. Co. v. Artist, 23 L.R.A. 581, 9 C. C. A. 14, 19 U. S. App. 612, 60 Fed. 365; Big Stone Gap Iron Co. v. Ketron, 102 Va. 23, 102 Am. St. Rep. 839, 45 S. E. 741; Pittsburgh, C. C. & St. L. R. Co. v. Sullivan, 141 Ind. 83, 27 L.R.A. 840, 50 Am. St. Rep. 317, 40 N. E. 138; O'Brien v. Cunard S. S. Co. 154 Mass. 272, 13 L.R.A. 329, 28 N. E. 266; Elliott, Railroads, 2d ed. § 223, 3d ed. § 1388; Guy v. Lanark Fuel Co. 72 W. Va. 728, 48 L.R.A.(N.S.) 536, 79 S. E. 941; Lindler v. Columbia Hospital, 98 S. C. 25, 81 S. E. 512. Mr. J. B. McLauchlin for respondent. Gage, J., delivered the opinion of the court: urbs of Columbia. Action for tort to the person; verdict for plaintiff for $1,000; appeal by defendant. History: The electric car was running towards College place in the northern subThe plaintiff, a boy fourteen years old, was a passenger. He rang for the car to stop, rose and went forward to the platform occupied by the motorman, and got upon the step. He was thrown to the ground and his shoulder bones injured. His mother, living hard by, came out to the scene, and, it is alleged, desired to take the boy into her house. The conductor, it is alleged, demurred, and carried the boy to the end of the line and back into the city to the company's surgeon for treatment, as he was bound to do by the company's rules. He was treated by that sur Youngstown Park & F. S. R. Co. v. Kessler, 84 Ohio St. 74, 36 L.R.A. (N.S.) 50, 95 N. E. 509, Ann. Cas. 1912B, 933; Quinn v. Kansas City, M. & B. R. Co. 94 Tenn. 713, 28 L.R.A. 554, 45 Am. St. Rep. 767, 30 S. W. 1036; Laubheim v. De Koninglyke Ne-geon and discharged for well. Earlier cases covering the subject under annotation will be found in note attached to Youngstown Park & F. S. R. Co. v. Kessler, 36 L.R.A. (N.S.) 50. Later cases are in accord with the rule which received the unanimous support of the authorities collected in the earlier note, that if one who assumes to furnish medical or surgical attention to another acts in good faith and with reasonable care in the selection of a physician or surgeon, and has no knowledge of incompetency or lack of skill or want of ability on the part of the person employed, but selects an authorized physician in good standing in his profession, he has fulfilled the full meas. ure of his contract and cannot be held liable for any want of skill on the part of the person employed. Allegar v. American Car & Foundry Co. 124 C. C. A. 319, 206 Fed. 437, affirming 198 Fed. 447; Atlantic Coast Line R. Co. v. Whitney, 62 Fla. 124, 56 So. 937; Tippecanoe Loan & T. Co. v. Cleveland, C.' C. & St. L. R. Co. Ind. App. -, 104 N. E. 866; Wharton v. Warner, 75 Wash. 470, 135 Pac. 235; Hillyer v. St. Bartholomew's 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 Hospital [1912] S. C. 69. And it will be noticed that this rule is expressly admitted in EASLER V. COLUMBIA R. GAS & ELECTRIC Co., the liability for malpractice in that case being predicated on the fact that the railroad company took the injured boy to its physician against the protest of his mother.. And a knowledge of the failings of the physician or surgeon must be brought home to a railway company employing him. His general reputation may be so bad that the law will impute knowledge; but nothing short of this will make it liable. Atlantic Coast Line R. Co. v. Whitney, 62 Fla. 124, 56 So. 937. And so, where the evidence showed that a hospital exercised reasonable care in selecting a surgeon, it was held in Wharton v. Warner, 75 Wash. 470, 135 Pac. 235, that it could not be held responsible for his negligence where, in performing the opera There are two exceptions, but the second was withdrawn, and the first only was argued, and on it turns the case. The defendart's fifth request was this: "In the complaint it is alleged that the defendant, through its doctor, negligently treated the plaintiff. I charge you there is no evidence in this case which will warrant you in giving any verdict on account of such alleged treatment on the part of the physicians employed by defendant." The court declined to charge the request, and that is the issue here. The exception thereabout indicates the error of the refusal, to wit: "The error being that there was no act of omission or commission shown on the part of defendant's physician, and defendant had no power to direct the medical services of its physician, and was only chargeable with reasonable care in employing said physician, and the evidence therefore failed to show any negligence, and the request was proper, and should have been charged." The exact issue the appellant has made in argument is this: That the defendant acquits itself when it has used ordinary care in the gratuitous employment of a reasonably competent surgeon; and, that done, the company is not liable for the surgeon's tort. The respondent contends at the outset that the request embodied no such idea, and that no such idea was expressed in argument to the court below, and that the issue which it embodied may not now be made here. It is true the complaint contained no altion of curettement of the uterus, he allowed a metallic spring, 12 inches long, to be detached from an instrument used in packing, and left in the body of the patient. And in Hillyer v. St. Bartholomew's 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, it was held that there being no evidence of any breach of duty of using reasonable care in selecting as members of the staff persons who were competent, either as surgeons or as nurses, properly to perform their respective parts in the surgical operations, the governors of the hospital were not liable for injury to a patient during an operation. And following Hillyer v. St. Bartholomew's Hospital as authority, it was held in Foote v. Greenock Hospital [1912] S. C. 69, that, apart from special contract, the managers of a public hospital are not responsible to the patients whom they receive (whether paying or not paying) for unskilful or negligent medical treatment, provided they have exercised due care in the selection of a competent staff. Where, for its own purposes, a telephone company employs a physician to take an legation of negligent employment, nor did the answer contain any allegation of competency. And it is true that no witness for the defendant was asked to testify to the competency of the surgeon; but no witness for the plaintiff testified directly to his incompetency, and the burden of proving that was on the plaintiff. There was no reference in the court's charge to the matter of negligent employment. A critical construction of the request doubtless sustains respondent's view; but the exception, made after the trial, it is true, suggests the idea; and we shall consider the issue now suggested in appellant's argument, but in the light of the testimony of the witnesses. It is true that if a carrier shall (1) employ a surgeon to treat a patient, (2) and if the surgeon be reasonably competent, (3) and if the service to the patient be gratuitous, and (4) if the surgeon neglect the patient, then the master is not liable for the ill consequences to the patient. In that case, if the carrier owed any duty, he performed it when he selected a reasonably competent surgeon. In that case the carrier, as the alleged master of the surgeon, is not held liable for maltreatment, and on the theory that he has no power to direct the surgeon about his work. But in the case at bar there was testimony-denied by the defendant, it is true that the boy was taken away from the mother against her consent. Her testimony is short, and this is the pith of it: "I went out immediately, and the conductor had the boy up and was pushing him to the X-ray picture of the injury of an employee, who protests against such action, but finally consents, if, in the taking of such picture, injury results to the employee, the physician is the agent or servant of the telephone company, and the rule of respondeat superior applies. Jones v. Tri-State Teleph. & Teleg. Co. 118 Minn. 217, 40 L.R.A. (N.S.) 485, 136 N. W. 741, 4 N. C. C. A. 832. A hospital conducted as a charity is not liable to a patient paying for board a sum less than the per capita cost of maintenance for an unauthorized operation upon him by a physician of its staff, serving without pay from it, although the operation constitutes an assault for which the physician may be personally liable, since the relation between the hospital and the physician is not that of master and servant. Schloendorff v. Society of New York Hospital, 52 L.R.A. (N.S.) 505. Generally as to liability of charitable institutions for personal injury, see note to Schloendorff v. Society of New York Hospital, and notes therein referred to. Generally as to liability of master for negligence of physician employed, see Index to L.R.A. Notes, § 59. J. H. B. car. He MINNEAPOLIS THRESHING MACHINE V. (34 S. D. 498, 149 N. W. 163.) Tax priority to purchase money mort 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 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 of a mile. I protested against this. didn't offer to bring me back with the boy. Mr. Davis, who works for the company, brought the boy back home later. His arm was broken; he was bandaged up and suffered awful. Dr. Boyd came out one time. He said for the boy to come down every day. Boy started back to work, and father had to stop him. I never told the company not to take him and treat him free, and did not tell them to do so. They gave me no chance to do so. The boy kept on going down there to be treated." If that be true, and of it the jury judged, then there was evidence which warrants the jury in giving a verdict on account of the treatment of the physicians. (Language of request.) It may be the duty of the carrier to call a surgeon to serve an injured passenger in a sudden emergency; but it is not the duty of the carrier to do so when the natural guardian of the injured passenger is present and dissents therefrom. It is manifest the defendant had no right to the custody of the boy against the mother's consent; the forcible taking of custody was in itself a wrong; the relation of carrier and passenger was not immediately terminated; and, if the boy was injured while thus in defendant's custody, no matter if by a surgeon, then the defendant is liable for such injury. The carrier is estopped to deny that it inflicted the injury. The court, in effect, so charged the jury, and there is no exception thereabout. Thereupon follows another inquiry necessary to be proved to sustain the plaintiff's action: Was the boy injured by malpractice of the surgeon? Certain surgeons swore that he was; three swore that he was not; and betwixt them the jury decided for the plaintiff. But the verdict may be sustained independently of the alleged tort of the surgeon. If the plaintiff was flung from the car and his shoulder broken, and if he was thrown by the sole negligence of the company, then the defendant is liable. SO The verdict is conclusive against the defendant on those issues. In any view of the case, the verdict must be sustained, and the judgment affirmed. It is so ordered. 1. Under a statute making all taxes upon personal property a first lien on all personal property of the person against whom they are assessed, an assessment of a personal property tax will take precedence, as to the entire tax on the owner's personalty, of an existing chattel mortgage given to secure the purchase price of a particular article of machinery. Mortgage priority of tax lien existing statute. 2. A chattel mortgagee cannot complain of a statute existing when his mortgage was taken, which makes all personal taxes a lien on all personal property of the taxpayer. The proposition expressly held by the court in MINNEAPOLIS THRESHING MACH. Co. v. ROBERTS COUNTY, that it is competent for the legislature to declare a lien for personal tax superior to a pre-existing lien on specific items of personal property of the owner, seems to be generally conceded, or at least not denied by the cases, although none of the other cases has construed the local statute to give a lien for the whole amount of personal taxes priority over a pre-existing lien upon specific personal or real property of the person against whom the tax is obvious difference between the situation as to real property taxes and that as to personal property taxes. The lien on real property attaches to each particular tract for the portion of the tax assessed against it, while in the case of personal property the lien for taxes is not confined to the specific articles assessed, but attaches to all the personal property of the taxpayer. The extension of a preference to the lien for real property taxes over a pre-existing lien on assessed. In this connection there is an Gary, Ch. J., and Hydrick, Watts, and the property merely imposes a burden of Fraser, JJ., concur. definite and comparatively small amount, the |