MR. CHIEF JUSTICE GARY and MR. JUSTICE FRASER con

cur.

MR. JUSTICE WATTS, dissenting. For the reasons stated by his Honor, Judge Mauldin, in his Circuit decree, it is the judgment of this Court that the judgment of the Circuit Court be affirmed.

MR. JUSTICE GAGE. I concur in the opinion of Mr. Justice Watts.

10494

SANDEL v. STATE.

(104 S. E. 567.)

1. TRIAL-DISCRETION OF COURT IN REFUSING TO SEND MEDICAL REPORT TO JURY ON REQUEST NOT ABUSED.-In an action against the State for the death of plaintiff's children, alleged to have been caused by inoculating them with impure vaccine furnished by the State board of health, discretion of the trial Court in refusing to send to the jury report of the director of the State laboratory, made to the State health officer, of his investigation of the circumstances, held not abused.

2. TRIAL-REQUEST PROPERLY REFUSED AS INVADING PROVISION OF CONSTITUTION AGAINST CHARGING ON FACTS.-In an action against the State for death of plaintiff's children, alleged to have been caused by their inoculation with impure vaccine furnished by the State board of health, the trial Court, on the ground that in so charging he might invade the provision of the Constitution against charging on the facts, properly refused to charge on plaintiff's request that the report of the director of the State laboratory to the State health officer regarding the circumstances of the deaths, being admissions of the State's officers, must be considered by the jury like any other admissions.

3. DEATH-CONTRIBUTORY NEGLIGENCE OF PARENTS GOOD DEFENSE.— Where an action for injury to or death of an infant is brought for the benefit of the parents, the contributory negligence of the parents or their agents is a good defense.

NOTE. The question of contributory negligence of parent as bar to action by parent or administrator for death of child non sui juris, is discussed in notes in 18 L. R. A. (N. S.) 328, and 38 L. R. A. (N. S.) 754.

4. APPEAL AND ERROR-TO REVIEW LACK OF EVIDENCE ON CONTRIBUTORY NEGLIGENCE, MOTION TO DIRECT VERDICT IS NECESSARY.-The lack of contributory negligence should have been brought to the trial Court's attention by motion to direct verdict on such issue.

5. DRUGGISTS-CHARGE ERRONEOUS AS IGNORING ELEMENTS OF "INTERVENING CAUSE."-In an action against the State for death of children from impure vaccine furnished by the board of health, a charge that no recovery can be had where there was any intervening cause, between the treatment and the death, in the absence of which the patients would not have died, is erroneous, as ignoring essential elements of an "intervening cause," which must be new and independent, not under the control of the original wrongdoer, or one which by the exercise of diligence he should have anticipated and guarded against, and one which breaks the continuity of causal connection between the original wrong and the injury.

6. DRUGGISTS-INSTRUCTION ON DEGREE OF CARE OWING BY MANUFACTURING CHEMISTS, PROPER.-In an action against the State for death of children from inoculation with impure vaccine furnished by the State board of health, instruction that in all cases the law requires the exercise of due care, defined to mean the care which a person of ordinary reason and prudence would exercise in the circumstances, and that the degree of knowledge, skill, and care required of a pharmacist, manufacturing chemist, is that which is ordinarily possessed and exercised by those in their special line of work, was

proper.

7. DRUGGISTS-INSTRUCTION ERRONEOUS AS FAILING TO DEFINE CONTRIBUTING CAUSE DEFEATING RECOVERY.-In an action against the State for death of children from inoculation with impure vaccine furnished by the State board of health, instruction, given at the State's request, with modification, held erroneous as failing to specify or define the kind of contributing cause to the deaths which would defeat

recovery.

8. TRIAL-INSTRUCTION NOT MISLEADING WHEN TAKEN AS WHOLE.-In an action against the State for death of plaintiff's children, alleged to have been caused by inoculation with impure vaccine furnished by the State board of health, instruction given at the State's request, with modification, that the law makes a distinction between actionable negligence and mere accident, etc., stating that when usual custom and manner of preparation are spoken of, what is meant is due care in the preparation of such articles, though slightly inaccurate and inapt to express clearly the meaning intended, held not misleading, taken as a whole.

9. NEGLIGENCE-PARTICULAR INJURY NEED NOT HAVE BEEN FORESEEN. Though an injury which could not have been foreseen or reasonably

Argument of Counsel

[115 S. C. anticipated as the probable result of an action of negligence is not actionable, it is not necessary to show that the particular consequences or injury which resulted could have been foreseen, but it is enough that the negligent person should have foreseen injury of some kind.

10. CONSTITUTIONAL LAW-ACT GIVING STATE'S CONSENT TO ACTION AGAINST IT NOT DENIAL OF DUE PROCESS; "DEPRIVED."-Act March 9, 1918 (30 St. at Large, p. 1097), giving the State's consent to action against it for certain deaths, is not violative of Const., art. I, sec. 5, providing that no person shall be deprived of life, liberty, or property without due process, the provision being a limitation on the power of the State; moreover, "deprive" connotes want of consent. 11. STATUTE-TITLE OF ACT AUTHORIZING SUIT AGAINST STATE SUFFICIENT.-Act March 9, 1918 (30 St. at Large, p. 1097), entitled “An act to authorize and empower the administrator or administrators" of children, claimed to have been killed by inoculation with 'impure vaccine furnished by the State board of health, to bring an action against the State, held not violative of Const., art. III, sec. 17, providing every act shall relate to but one subject, which shall be expressed in its title.

12. STATUTES-ACT AUTHORIZING ACTION AGAINST STATE NOT VIOLATIVE OF PROHIBITION OF SPECIAL LAWS.-Act March 9, 1918 (30 St. at Large, p. 1097), entitled "An act to authorize and empower the administrator or administrators" of children, claimed to have been killed by inoculation with impure vaccine furnished by the State board of health, to bring an action against the State, held not violative of Const., art. III, sec. 34, prohibiting the enactment of special laws on certain specified subjects, and providing that in all other cases, where a general law can be made applicable, no special law shall be enacted.

Before SEASE, J., Richland, March term, 1919. Re-. versed.

Action by J. O'Neal Sandel, as Administrator of the Estate of Minnie and Thelma Sandel, Deceased, against the State of South Carolina. From judgment for defendant, the plaintiff appeals.

Messrs Colcock & Colcock, Cole. L. Blease, Wm. N. Graydon and C. S. Monteith, for appellant. Mr. Graydon cites: Deceased children under five years of age, conclusively presumed to be incapable of contributory negligence:

29 Cyc. 537; 11 S. C. 77. Nor could negligence of parents be imputed to children: 66 S. C. 47; 76 S. C. 539; 81 S. C. 488; 1 Thomp. Neg., sec. 310, p. 292. Legal effect of report of Dr. Coward should have been ruled on by Court: Greenleaf Evid., secs. 483, 484, 171. State liable for effects produced by vaccine even though it had passed through other hands after leaving the State laboratory: 1 Thomp. Neg., secs. 48, 49, 52, 53, 56, 63, 66; 94 U. S. 469, 474; 24 L. Ed. 256; 95 S. C. 130; 25 L. Ed. 395; 92 S. C. 329; 109 S. C. 119; 101 S. C. 62. Improper test applied to skill necessary for manufacturing chemist: 110 S. C. 560. Court erred in defining "due care" as the "usual precautions:" 185 U. S. 468; 47 L. Ed. 905; 81 S. W. 760. Demurrer of defendant properly overruled: 109 S. C. 301; 113 S. C. 466; 101 S. E. 826.

Mr. Sam'l M. Wolfe, Attorney General, and Alva M. Lumpkin, Acting Assistant Attorney General, for respondent, cite: Appellant cannot now complain about charge as to contributory negligence: 4 C. J., par. 2625; Id. 717, par. 2635. And where no evidence to support a charge, not prejudicial to charge on it: 44 S. C. 546; 31 S. C. 525; 29 S. C. 305. Instructions not applicable not reversible error, being without prejudice: 4 C. J., par. 3015; and plaintiff acquiesced in nature and theory on which case was tried: 4 C. J., p. 719-21; 64 S. C. 104. Error, if any, was harmless: 71 S. C. 44; 44 S. C. 546; 72 S. C. 162; 33 S. C. 505; 100 S. C. 458; 94 S. C. 218; 93 S. C. 518; 68 S. C. 427; 44 S. C. 324. Dr. Coward's report not such a written instrument as Court should construe: 4 Words & Phrases 1357. Charge of Judge as to proximate cause was correct: 77 Wis. 174; 55 S. C. 403. And as to degree of skill necessary, also correct: 37 L. R. A. 830. Elements of actionable negligence: 9 A. & E. Enc. Law 424. "Accident:" 55 S. C. 403. Plaintiff should have requested modification or amplification of charge: 100 S. C. 435; 84 S. E. 991; 100 S. C. 138; 84

Opinion of the Court.

[115 S. C. S. E. 420; 100 S. C. 458; 85 S. E. 377; 86 S. E. 30. Fact that treatment did not result favorably in every instance, not to be construed as constituting negligence in one who administers or recommends it: 37 L. R. A. 830-833. Demurrer to complaint should have been sustained, as State cannot be sued for torts of its servants unless the State, through its Legislature, expressly assumes responsibility: 4 Labatt Master & Servant (2d Ed.) 4296-97; Story Agency (7th Ed.), par. 319; 40 L. R. A. 677; 50 L. R. A. 430; 37 S. E. 187. Not competent by legislation to bring into existence a demand for which a party was neither legally or equitably bound: 16 Mass. 215; 15 L. R. A. 700; 9 Wheat. 720; 6 L Ed 199; 15 L. Ed. 991; 60 S. C. 472. Consent of State ton action merely affords an opportunity for trial, and does not create a new liability: 4 Labatt Master & Servant 4926-28; 36 Cyc. 915. Special laws: Const. 1895, sec. 34, art. III; 77 S. C. 260; 109 S. C. 8. Title of act: Const. 1895, art. III, sec. 17; 89 S. C. 94; 95 S. C. 104; 95 S. C. 403; 97 S. C. 205. Due process: 53 S. C. 259

October 11, 1920.

The opinion of the Court was delivered by MR. JUSTICE HYDRICK.

By consent of the State, given by an act of the legislature (30 Stat. 1097), plaintiff brought this action for damages for the death of his two children, both under five years of age. He alleged that their death was caused by inoculating them with impure antityphoid vaccine sent out for use by the State board of health, and charges negligence in various details of the preparation and bottling of the vaccine. The defenses were a general denial and contributory negligence.

Plaintiff put in evidence a report made by Dr. Coward director of the State laboratory, to Dr. Hayne, State health officer, of his investigation of the circumstances of the death of plaintiff's children and two others, following inoculation.