Sandel v. State

• Decision Date: 11 October 1920
• Docket Number: 10494.
• Parties: SANDEL v. STATE.
• Court: South Carolina Supreme Court

104 S.E. 567

115 S.C. 168

SANDEL v. STATE.

No. 10494.

Supreme Court of South Carolina

October 11, 1920

Appeal from Common Pleas Circuit Court of Richland County; Thomas S Sease, Judge.

Action by J. O'Neal Sandel, as administrator, etc., against the State. From judgment for defendant, plaintiff appeals. Reversed.

Graydon & Graydon, Colcock & Colcock, Cole L. Blease, and C. S Monteith, all of Columbia, for appellant.

S. M Wolfe, Atty. Gen., and A. M. Lumpkin, Asst. Atty. Gen., for the State.

HYDRICK J.

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 from the same lot of vaccine. The report stated, among other things, that unused portions of the vaccine from which plaintiff's children had been vaccinated were examined, and found to have been contaminated with pus germs. From the facts stated in his report, Dr. Coward concluded that some portions of the lot were contaminated in the bottling, and from the hands of the person who did the bottling, and that the death of the children was caused by protein poison, which is explained in his report.

The medical experts who testified for plaintiff and the state differed as to the cause of death. Those who testified for plaintiff thought that it was caused by the contamination, or, at least, that it might have been so caused, though some of them said there might have been contributing causes, but no contributing causes were mentioned, except one suggested by Dr. Coward, which was eliminated by the testimony. The experts who testified for the state were of the opinion that death could not have been caused by the presence of pus germs in the vaccine, at any rate, not within the time that elapsed between vaccination and death, which was from 19 to 36 hours.

Plaintiff's evidence tended to prove some of his specifications of negligence, and the state's evidence tended to prove due care, and that the methods observed and practiced in the preparation and bottling were the same as those followed in the best laboratories. The verdict and judgment were for the defendant.

Plaintiff excepts to the refusal of the court to send Dr. Coward's report to the jury, upon their request. The court informed the jury that they might come in and have the report, or any other testimony, read over to them, if they wished. It is the usual practice to send all documentary evidence to the jury, unless there is some reason for not doing so; for example, if the documents contain matter which might confuse or mislead the jury, or if they contain irrelevant or incompetent testimony, which cannot be separated from that which is relevant and competent, or if it would be unfair to one of the parties by reason of bringing more prominently and vividly before the jury the testimony of the other, and for other reasons which may occur, the court may decline to send to the jury particular documents in evidence. It is a matter that must be confided to the sound discretion of the trial court, with whose decisions this court will not interfere, except where there has been abuse of discretion. In this case, we think the discretion was wisely exercised. Robertson v. Millar, 1 McMul. 120; Means v. Means, 7 Rich. 533; Church v. Elliott, 65 S.C. 251, 43 S.E. 674; State v. Barwick, 89 S.C. 153, 71 S.E. 838.

Plaintiff's third request was:

"That the report of Dr. Coward, and the state board of health, being admissions of its officers, must be considered by the jury, just as any other admission made by a defendant in a cause."

In response, the court said:

"In place of charging you plaintiff's third request, I charge you that you are to consider all the testimony. I think it would be unfair, and very likely I would invade the provision of the Constitution (against charging on the facts) to call your attention to any particular piece of testimony. All I can charge you is that all the testimony has come out, and you must consider it one way or the other."

The request was properly refused for the reason stated. The instruction given instead of it was all that plaintiff was entitled to.

Error is assigned in the charge as to contributory negligence, because plaintiff's intestates are conclusively presumed, from their age, to have been incapable of contributory negligence, and the negligence of their parents cannot be imputed to them. The grounds stated are correct, but inapplicable. They would have been applicable in an action brought for the benefit of the infants. But where an action for the injury or death of an infant is brought for the benefit of the parents, as in this case, the contributory negligence of the parents, or their agents, is a good defense, because in reason they cannot hold defendant liable to them for the consequence of their own negligence. No one is allowed to take advantage of his own wrong. Berger v. Railway, 93 S.C. 372, 76 S.E. 1096; Kilpatrick v. Spartanburg, 101 S.C. 334, 85 S.E. 775.

The charge as to contributory negligence might have been omitted, because there was no evidence to sustain that defense. There was testimony that there might have been contributing causes to the death of the children, but none tending to prove any such cause due to plaintiff's negligence. If the lack of evidence to sustain that defense had been brought to the attention of the court by a motion to direct the verdict on that issue, as it should have been, the issue would have been eliminated.

In a general charge that was remarkably clear, perfectly fair, and free from error, the court laid down the applicable principles of law. We have discovered no error, except in some of defendant's requests. They were not numbered, as they should have been for convenience of reference. The first in order, as modified by the court was as follows:

"In an action for the death of a patient through the alleged negligence of the one manufacturing, dispensing, or administering treatment, no recovery can be had where there was any intervening cause, in the absence of which it is reasonably probable that the patient would not have died."

The Court: "I charge you that, in connection with what I have already charged you, that the plaintiff is called upon to prove that the negligence existed, and that that negligence was the direct and proximate cause of the injury and damage complained of--the death of the children."

The Court erred in charging:

"No recovery can be had where there was any intervening cause, in the absence of which * * * the patient would not have died."

The request ignored some of the essential elements of an intervening cause which will shield the original wrongdoer from liability. Such an intervening cause must at least be new and independent, not under the control of the original wrongdoer, or one which by the exercise of reasonable foresight and diligence he should have anticipated and guarded against. It must break the continuity of causal connection between the original wrongful act or omission and the injury, so that the former cannot be said to have been the efficient cause of the latter.

Let us illustrate from the famous squib case (Scott v. Shepherd, 2 W. Bl. 892). The injury did not result immediately from defendant's act in throwing the squib upon another; and, if that person had not thrown it upon another, and if the last man had not thrown it upon the plaintiff, he would not have been injured. There we have an intervening cause, in fact, several of them, in the absence of which the plaintiff would not have been injured. Nevertheless, the defendant was liable to the plaintiff, because he had wrongfully set in motion a force which continued to operate until it caused the injury. The causal connection between the primary wrong and injury was not broken. Now if the defendant had thrown the squib where it would have caused no injury, and some one else had taken it up and started it anew on its errand of mischief, there would have been a new cause, not dependent upon, or a natural and probable consequence of the first. The chain which connected defendant's act with the injury would have been broken, so that defendant's act would have been the only remote cause, or, as it is sometimes called, the mere condition of injury.

The test, therefore of the sufficiency of intervening causes to defeat recovery is not to be found in the mere fact of their existence or number, but rather in their nature, and the manner in which they affect the continuity of the operation of the primary cause, or the connection between it and the injury. If they so affect it that the injury cannot fairly be said to be the natural and probable consequence of the primary cause, they become the proximate or efficient, and the primary becomes the remote, cause. The law does not go back of the last efficient cause. Cannon v. Lockhart Mills, 101 S.C. 59, 85 S.E. 233; Carter v. R. R. Co., 109 S.C. 119, 95 S.E. 357; Milwaukee, etc., R. Co. v. Kellog, 94 U.S. 469, 24 L.Ed. 256; 22 R. C. L. 132-134.

The difference between intervening and concurring causes appears to have been overlooked. In operation an intervening cause succeeds or follows that which, for convenience, is called...