Sandel v. State , 126 S.C. 1 ( 1923 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] August 2, 1923. The opinion of the Court was delivered by The appeal arises in an action brought under the provisions of an Act entitled "An Act to authorize and empower the administrator or administrators of Thelma Sandel and Minnie Sandel, deceased, to bring action against the State of South Carolina." 30 St. at Large, p. 1097. The body of the Act authorizes the bringing of — "action in the Court of Common Pleas for Richland County against the State of South Carolina, for the recovery of such damages as may be proper, if any, on account of the death of the said Thelma Sandel and Minnie Sandel at Lone Star, South Carolina, in the year 1915, following the injection of serum furnished by the State of South Carolina."

And further provides as follows:

"The action or actions, shall be brought under the provisions of, and for the benefit of, the persons named in Sections 3955 to 3958, both inclusive, of Volume 1, Code of Laws of S.C. 1912, except that punitive damages shall not be prayed for in the complaint, and the principle of law applicable to cases brought against any person or corporation, organized under the Laws of South Carolina, shall be applicable to the action or actions, hereby authorized to be brought. The action or actions shall be commenced by the service of a summons and complaint under the Code of Civil Procedure, and the same shall be served upon the Attorney General of the State, who is hereby directed to answer the same, and to protect the interest of the State, either side to have a right of appeal to the Supreme Court as in ordinary civil actions."

Under authority of this Act the plaintiff herein as administrator brought separate actions against the State for damages on account of the deaths of the two children, Thelma and Minnie Sandel, alleging in each case that death was caused by the injection of contaminated anti-typhoid vaccine furnished by the State and that such contamination was due to the negligence of the State, through its agents and servants, in the preparation and distribution of the vaccine. The State demurred to the complaint upon various grounds. The defense interposed by answer was a general denial and a plea of contributory negligence. The cases were first tried together before Judge T.S. Sease and a jury, March, 1920, and resulted in a verdict for the defendant. On appeal by plaintiff this Court passed upon several questions raised and granted a new trial for error in the Judge's charge (Sandel v. State, 115 S.C. 168;104 S.E., 567; 13 A.L.R., 1268), following which this case, being the separate action for the death of Thelma Sandel, was tried the second time before Judge H.F. Rice and a jury, June, 1921, and resulted in a verdict for plaintiff in the sum of $25,250.

From judgment upon verdict the defendant appeals upon various grounds, raising substantially the following questions, which will be considered in the order stated: (1) Was there error in refusing defendant's motions for nonsuit and for the direction of verdict? (2) Was there error in withdrawing from the jury the defense of contributory negligence? (3) Was there error in admitting in evidence the report of Dr. F.A. Coward?

1. As to the first question, we think the motions for nonsuit and for the direction of verdict were properly refused. Discussion of this question is appropriately prefaced by that portion of the Act itself which provides that summons and complaint in the action authorized shall be served upon the Attorney General — "who is hereby directed to answer the same, and to protect the interest of the State, either side to have a right of appeal to the Supreme Court as in ordinary civil actions."

Under the well-settled rule, the defendant must rely in this Court upon the grounds of the motions as specified and assigned by counsel upon Circuit.

The grounds upon which these motions were actually made on the trial below were (1) that there was no evidence of any negligence which operated as a proximate cause of the death — a contention clearly directed to an issue of fact, and (2) that there was no liability under the Act, in that the evidence established that in the commission of the alleged delict the State was acting in the capacity of an eleemosynary institution. The evidence upon the issue of fact as to negligence was such as to require the submission of that issue to the jury. The contention that in the distribution of vaccine the State occupied the position of an eleemosynary institution and was not on that account liable, either at common law or under the terms of the Act, is likewise untenable. To have granted defendant's motions on the latter ground would have involved (1) a finding that the evidence was open to no other reasonable inference of fact than that the vaccine was furnished by the State in the capacity of an eleemosynary institution, and (2) that the State, in conferring authority to bring action, had reversed the right to disavow liability for damages upon the ground that, as an eleemosynary corporation, it was not liable for the torts of its agents and servants.

As to the first proposition, we do not think it would have been competent for the trial Judge to hold that, under the evidence adduced, the State's Acts and conduct were in fact those of an eleemosynary corporation within the rule exempting such institutions from liability under the doctrine of respondeat superior. Eleemosynary corporations are those created for charitable and benevolent purposes. "An eleemosynary corporation is a private as distinguished from a public corporation." 7 R.C.L. ___, Am. Asylum, etc. v.Phoenix Bank, 4 Conn., 172; 10 Am. Dec. 112. To find as a fact that in the distribution of typhoid vaccine the State, through the State Board of Health, was engaged purely in a work of charity and benevolence would have required the Court to assume that there was no economic and utilitarian purpose in the undertaking to safeguard and promote the health of the members of the body politic by distributing the vaccine in question. As a matter of fact there are substantial differences in character and purpose between the work of the ordinary private corporation engaged in administering a fund for purposes of charity and benevolence, that is, of a so-called eleemosynary corporation, and that of a State, engaged in the prosecution under the police power of projects through governmental agencies for the promotion of the public health. Hence, it cannot be held that Judge Rice would have been warranted in finding as an undisputable inference of fact that the State in the case at bar was engaged in work impressed with the legal character of an eleemosynary corporation.

But even if that conclusion had been warranted, we are of the opinion that it was not the intent of the General Assembly, as embodied in the Enabling Act that immunity from liability should be claimed by the State upon that ground. By the express terms of the statute it is provided that the action authorized "shall be brought under the provisions of" Sections 3955 to 3958 inclusive, of Volume 1 of the Civil Code, "except that punitive damages shall not be prayed for," and "the principle of law applicable to cases brought against any person or corporation * * * shall be applicable to the action," etc. The State would seem clearly to be thereby subject to liability for a wrongful death caused by negligence in the same manner and to the same extent as any person or corporation so liable. That the State thereby waived immunity from liability as a sovereign, we think, is one of the points that is now resjudicata under the decision of this Court upon the former appeal (115 S.C. 168; 104 S.E., 567; 13 A.L.R., 1268), holding that the demurrer to the complaint herein was properly overruled. With the argumentative premises, whether erroneous or not, upon which that conclusion is predicated, we are not here concerned. It cannot now be assumed, certainly in the absence of any such contention on the part of the State's counsel, that the demurrer interposed in due season to the plaintiff's cause of action as alleged in the complaint did not attack the validity thereof upon all available and proper grounds. See Turner v. Association,51 S.C. 33; 27 S.E., 947. Long v. Hunter, 58 S.C. 152;36 S.E., 579. Electric Co. v. Supply Co., 66 S.C. 342;44 S.E., 952. Mauldin v. Ry. Co., 73 S.C. 9;52 S.E., 677. If plaintiff's complaint states a good cause of action for recovery of damages for wrongful death — a point that has become res judicata under the former decision — the waiver of the State's immunity as a sovereign has been adjudicated. If the State's immunity as a sovereign was waived by the Enabling Act, the contention that while waiving its immunity as a sovereign state it retained and reserved the lesser privilege of immunity as an eleemosynary corporation is lacking in rational appeal. The immunity from liability of the sovereign for torts of its agents is of exactly the same character as the immunity accorded the eleemosynary corporation. Both rest upon the same basis of reason — the exigencies of sound public policy. When, therefore, the State divested itself of immunity from liability for the negligence of its agents in this case, it must be assumed that the General Assembly, the creator of the State Board of Health and the director of its activities, was duly advertent to the eleemosynary character, if any, of the service of the State's agents, on account of which a right of action was given. Our conclusion, therefore, upon this phase of the case, is that the trial Judge committed no error in refusing the motions for nonsuit and for direction of verdict.

As to the second question, we are of the opinion that the Circuit Judge committed reversible error in withdrawing from the consideration of the jury the defense of the contributory negligence of the plaintiff and his agents. As clearly pointed out in the opinion of Mr. Justice Cothran, the right of the defendant to interpose and rely upon this defense was squarely presented to and decided by this Court upon the former appeal. That adjudication is now the law of this case. But that no binding force is to be attributed to the remarks of Mr. Justice Hydrick as to weight and sufficiency of the evidence upon that issue on the former trial — a question in no wise involved on that appeal — would seem clear beyond question. That sufficient evidence was adduced on the trial below to require the submission of this issue to the jury is equally clear. In view of the very full and lucid discussion of this point contained in the opinion of Mr. Justice Cothran, any further elaboroation of the reasons for the conclusion reached upon the question is deemed unnecessary. Respondent's contention that this defense was waived by defendant's counsel is not substantiated by the record. The defendant's counsel did not consent to withdraw the request to charge upon this defense until after the Circuit Judge had ruled that he would not submit the issue to the jury.

As to the third question, we are of the opinion that there was prejudicial error in admitting in evidence, over defendant's objection, the report of Dr. F.A. Coward.

The report in question is entitled, "Report of Dr. F.A. Coward, Director of Laboratory, State Board of Health on Anti-Typhoid Vaccine, Lot 67," is directed to "Dr. James A. Hayne, State Health Officer and Secty. State Board of Health, Columbia, S.C." and is submitted as a "report of investigation into the circumstances surrounding the recent deaths of children following the administration of typhoid vaccine." The report contains a "summary of cases," made up from reports of attending physicians, a summary of the reports of physicians using the vaccine in question, statements as to methods of preparation and test of the vaccine, and observations and conclusions as to the cause of contamination of the vaccine and as to the cause of the four deaths reported among which were the Sandel children. Dr. Hayne testified:

"I am State Health Officer and ex officio Secretary of the State Board of Health. Dr. Coward is employed by the State Board of Health through me, and is paid a monthly salary from the funds appropriated to the State Board of Health for this purpose. He is not a State Official. I authorized the report to be made to me, and, for the purposes of medical research and information, authorized Dr. Coward to send the report out to the medical profession. The report was not made officially and was not incorporated in our report to the General Assembly."

Apparently, the admission of this report is sought to be sustained and justified upon the theory that it constitutes such a public record, made by virtue of competent authority, on a subject-matter of public interest, as entitled it to admission as a public or official document under the well-established exception to the hearsay rule permitting the introduction of such records. Without entering into any extended discussion of the "public or official records" exception to the hearsay rule, we deem it necessary only to point out certain limitations upon that exception which clearly preclude the admission of this report. The document with which we are here concerned is commonly classified by text-writers upon the law of evidence as a report or inquisition. Wigmore, § 1670. As said by that eminent authority on evidence (Section 1670):

"Now an instruction or report, if made under due authority, stands upon no less favorable a footing than other official statements. * * * But the fundamental doctrine of the common law seems to have been that no authority to make an inquisition will be implied merely from the general nature of the office, and that an express authority must be created for the purpose, etc. * * * The general quality of a statement made under authority (should it exist) will suffice to admit it; but the authority which can be implied from the nature of an office is (sensibly enough) an authority to record or return those things, personally done by or before the officer."

Again (Section 1635[3]), the author says:

"Where the officer's statement is concerned with a transaction done, not by him or before him, but out of his presence (and out of the presence of his subordinates) the case is one in which obviously he can have no personal knowledge; the assumption must therefore be that his statement is inadmissible. * * * On the one hand we find a general exclusion of statements not based on personal knowledge (of the officer or his subordinates); this exclusion being rested usually on the circumstance that the duty does not extend to such matters. On the other hand we find a few kinds of statements where it has clearly been made the officer's duty to investigate and record or report irrespective of personal knowledge; in such cases the statements are admitted; but Courts are disinclined to recognize many instances as belonging within this class. Occasionally a statute makes the result clear by expressly declaring such statements admissible; but, in the absence of statute, courts are found slow to infer merely from the nature of the office any specific duty to record or certify on the faith of information derived from other persons, matters occurring without the officer's presence, or, at least, any duty sufficient to render such statements admissible in evidence. This attitude is, on the whole, and apart from specific vagaries, a safe and practical one, because, so far as the sources of the officer's information are not personal to himself, they will in general be equally and sufficiently available in the ordinary way as testimony for the party desiring to make proof."

We know of no law imposing upon the State Board of Health, acting through the State Health Officer or his subordinates, the duty of reporting and recording an official statement of the steps taken, testimony received, and conclusions reached on the basis of information derived from others, in the course of a special inquiry of the kind undertaken by Dr. Coward. Since no such specific official duty was imposed upon Dr. Hayne, no authority conferred by him upon Dr. Coward could transmute a hearsay report into competent evidence as an official document. Dr. Hayne himself states that "the report was not made officially." Since no authority can be implied from the nature of the State Health Officer's position to make an "official record" of matters outside his personal knowledge and that of his subordinates, the report of Dr. Coward lacked the express sanction of law essential to impressing a report containing such hearsay matters with the probative dignity and value of an admissible official record.

But even if made officially under express authority of law, a report or inquisition of the character of the Coward paper is not generally admissible in evidence to prove the truth of all matters therein contained. An official record very closely resembling the Coward report in scope and purpose is the record of a coroner's inquest.

"The general rule is that in a prosecution for homicide the finding of a coroner or the verdict of a coronor's jury as to the manner and cause of the death of the deceased is inadmissible in evidence for any purpose." Note 4 Ann. Can., 1020, citing cases.

"It was formerly held that the record of a coroner's inquest on a dead body was competent but not conclusive evidence of the cause of death in all civil actions, because it was the result of an inquiry made under competent public authority, to ascertain matters of public interest and concern. This rule still prevails in a few jurisdictions, but the weight of modern authority is against it." 10 R.C.L., 1128; note 4 Ann Cas., 1020, collating decisions.

See, also, Wigmore, § 1671, p. 2078, and cases cited in note 8. The danger of making a coroner's inquest, or any official investigation of the manner and cause of a person's death, a means of perpetuating testimony to be used in a civil suit, is obvious. Commenting upon the pernicious consequences of such a rule, Chief Justice Hayt, of the Supreme Court of Colorado, says:

"In case of death under suspicious circumstances, or resulting from accident, the rule permitting inquisitions to be used in evidence would result in a race and scramble to secure a favorable coroner's verdict, that would influence, and perhaps control, in case suit should be instituted, against life insurance companies upon policies of insurance, and in cases of accidents occurring as a result of negligence on the part of corporations operating railways, street car lines, mining for coal or the precious metals, etc." Germania L.Ins. Co. v. Ross-Lewin, 24 Colo., 43; 51 Pac., 488; 65 Am. St. Rep., 215.

In the case of Jewett v. Boston Elevated Ry., 219 Mass. 528;107 N.E., 433, the admissibility of a record even more nearly identical with the Coward report was considered. The action was by an administrator against a corporation operating a street railway for causing the death of the plaintiff's intestate. Plaintiff, for the purpose of showing the cause of the death of his intestate, offered in evidence the report of an autopsy upon the body of the intestate made by a medical examiner, under the provisions of a statute requiring the examiner to record "every fact and circumstance tending to show the condition of the body and the cause and manner of death." The Court said:

"Under such a statutory system, we perceive no ground upon which the report of the medical examiner, or a duly authenticated copy thereof, can be admitted in evidence to show the truth of the matters therein stated or even to show that the death was caused by violence. We are aware of no decision in any jurisdiction which goes to such a length. The duty of the medical examiner is merely to ascertain and preserve certain evidence that it may be available if needed for future proceedings. The reasoning in Allen v. Kidd,197 Mass. 256, is applicable; and the decisions in P. Garvan,Inc. v. N.Y. Cent. Hudson River R.R., 210 Mass. 275,279; Butchers Slaughtering, etc., Ass'n v. Boston, 214 Mass. 254,258, and Commonwealth v. Borasky, 214 Mass. 313,317, state the rule which must be followed."

Of strongly persuasive force, because of similarity in character to the action at bar, is a line of Massachusetts decisions in cases against quasi public corporations, of which the following is an illustrative case: Wheeler v. Inhabitantsof Framingham, 12 Cush. (Mass.), 287, was an action for injury to plaintiff's property by reason of an alleged defect in a highway. At the trial the plaintiff offered in evidence the report of an investigating committee duly chosen by the town, to the effect that the accident happened by reason of the road having been left in such condition that it was unsafe for travel. The report was duly accepted by the town at a meeting called for that purpose. The presiding Judge admitted the evidence. The Court said:

"The ruling of the Judge admitting the records of the town accepting the report of the committee, was incorrect, and cannot be sustained" — citing Collins v. Dorchester, 6 Cush. (Mass.), 396, and Dudley v. Weston, 1 Metc. (Mass.), 477.

The conclusion that the Coward report was not admissible by virtue of its alleged character as an official document is further enforced by the consideration that under the terms of the Enabling Act the State in the case at bar occupies the position of a person or private corporation legally liable for a wrongful death. The prejudicial effect of the introduction of the report was due in large measure to its tenor as an acknowledgment or admission on the part of the investigator, who was also the agent charged with the manufacture of the vaccine, that the vaccine was contaminated and that the injection thereof caused the death of plaintiff's intestate. In so far as the report contains statements of facts and transactions not within the personal knowledge of the investigator, and observations and opinions based thereon, it would clearly be inadmissible as rank hearsay in a similar action against a private corporation. For example, in action against a railway corporation for wrongful death of a passenger, the subsequent report of a claim agent sent out to investigate, made to the superintendent or president of the corporation, setting out the facts and circumstances of the death as gathered from others, and giving the agent's opinions thereon, would not be competent evidence upon any theory either to charge or exonerate the railway company. In so far as the report contains admissions of fact within the personal knowledge of Dr. Coward, tending to show negligence in the preparation of the vaccine, it was the declaration or admission of the principal's agent personally responsible therefor made long after the time of the alleged default. In such cases the applicable rule is thus stated by this Court in Rookard v. Railway Co., 84 S.C. 190; 65 S.E., 1047; 27 L.R.A. (N.S.), 435; 137 Am. St. Rep., 839.

"If an agent commits a tort, while acting within the scope of the agency, the principal is liable, but if he makes declarations or admissions concerning it, so long afterwards that they cannot be admitted as part of the res gesta, the principal is not bound by them." Patterson v. S.C.R. Co.,4 S.C. 153. Aiken v. Western U. Tel. Co., 5 S.C. 358.Mars v. Virginia Home Ins Co., 17 S.C. 519. PiedmontMfg. Co. v. Columbia G.R. Co., 19 S.C. 354. Petrio v.Columbia G.R. Co., 27 S.C. 64; 2 S.E., 837. Garrick v.Florida C. P.R. Co., 53 S.C. 448; 31 S.E., 334; 69 Am. St. Rep., 874. Salley v. Manchester A.R. Co., 62 S.C. 129;40 S.E., 111.

The conclusions of the Court upon the questions above discussed render unnecessary the consideration of other points raised by the exceptions.

For the reasons indicated, the judgment is reversed, and the cause remanded to the Circuit Court for a new trial.

MR. JUSTICE FRASER and MESSRS. DeVORE, SHIPP, MAULDIN, PEURIFOY and TOWNSEND, Circuit Judges, concur.

MR. JUSTICE COTHRAN: I concur in the disposition of the second and third questions and dissent as to the first. (See opinion.)