Sandel v. State

• Citation: 119 S.E. 776
• Decision Date: 02 August 1922
• Docket Number: (No. 10979.)
• Court: United States State Supreme Court of South Carolina
• Parties: SANDEL . v. STATE.

119 S.E. 776

SANDEL .

v.STATE.

(No. 10979.)

Supreme Court of South Carolina.

Aug. 2, 1922.

Eugene B. Gary, C. J., Watts and Cothran, JJ., and R. W. Menninger, I. W. Bowman, and Prank B. Gary, Circuit Judges, dissenting in part.

Appeal from Common Pleas Circuit Court of Richland County; Hayne F. Rice, Judge.

Action by J. O'Neal Sandel, administrator of the personal estate of Minnie Sandel, deceased, against the State. Judgment for plaintiff, and the State appeals. Reversed, and cause remanded for a new trial.

Appeal dismissed by Supreme Court. See 44 Sup. Ct. 5, 68 L Ed. —

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

Graydon & Graydon, Cole L. Blease, Col-cock & Colcock, and Colin S. Monteith, all of Columbia, for respondent.

MARION, J. 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 tothe 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 negli gence 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 reserved 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. p. 42; Am. Asylum, etc., v. Phœnix 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 beenwarranted, 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 res judicata 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...