The appeal in this case was heard by the Court at the October term, 1921, as the Court was then constituted, with the addition of Hon. F.B. Grier, who was specially appointed to sit in the place of Mr. Justice Gage, deceased.
Acting Associate Justice Grier prepared an opinion, which would have been the opinion of the Court, if the Court en banc had not been called together. It is hereby adopted as the opinion of the Court, and is as follows: *Page 17
"On the morning of July 13, 1915, Dr. Browning, the family physician of Mr. J. O'Neal Sandel, vaccinated with antityphoid serum, furnished gratuitously by the State of South Carolina, the two Sandel children, Thelma and Minnie, both under the age of five years. The vaccine was made by the State Laboratory under the immediate supervision of the director of the Laboratory. The children were vaccinated with a portion of what was known and designated as lot No. 67, and were apparently all right when inoculated. Dr. Browning states that he was careful to use all proper precautions, and advised the parents to keep the children as quiet as possible and give them a very light diet. On the same afternoon about 4:30 o'clock the children accompanied their mother to Lone Star, a short distance from the Sandel home. After returning home from Lone Star they showed symptoms of illness and grew rapidly worse. Dr. Browning was called in during the night and reached the Sandel home about 3 o'clock. He found the children in practically a comatose condition. The child in this case lived 19 hours from the time it was given the vaccine, and the other child died the following morning. Following the death of these two children, Dr. Hayne, Secretary and Chief Executive Officer of the State Board of Health, instructed Dr. Coward, director of the laboratory, for the purpose of medical research and information, to investigate and report into the circumstances surrounding their death. Dr. Coward, pursuant to these instructions, made a full and thorough investigation and reported the results with his conclusions to Dr. Hayne, as State Health Officer and Secretary of the State Board of Health. Unused portions of the vaccine were tested by Dr. Coward, and also by Dr. Browning, and found to contain pus germs, but the entire lot was not contaminated. The conclusion reached by Dr. Coward was that the contamination must have occurred in the bottling. In March, 1918, the State, by an Act of the Legislature (30 St. at Large 1097) gave its *Page 18 consent to the administrator of Thelma and Minnie Sandel, deceased, to bring suit 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 two children. The Act further provides that the action or actions shall be brought under the provisions of and for benefit of the persons named in Sections 3955 to 3958, both inclusive (Volume 1, Code 1912), except that punitive damages shall not be prayed for in the complaint, and the principles of law applicable to cases brought against any person or corporation organized under the laws of the State of South Carolina are made applicable to the actions authorized to be brought. The Attorney General of the State is directed to answer the complaint and to protect the interest of the State; either side to have the right of appeal to the Supreme Court as in ordinary civil actions.
"The plaintiff herein, as administrator of the estate of the two children, Thelma and Minnie, brought separate actions against the State of South Carolina, pursuant to the privilege granted by the Act of the Legislature, referred to above, for the death of the children, alleging in each case that death was due to contamination in the vaccine, that it contained pus germs or some other dangerous germs unknown to plaintiff, and that the contamination was the result of negligence on the part of the State in the manufacture or bottling of the vaccine. The answer of the State was a general denial, and as an affirmative defense contributory negligence. The cases were first tried together before Judge Sease, and resulted in a verdict for the State. An appeal was taken to the Supreme Court by the plaintiff, and the judgment reversed and a new trial granted. This case was tried separately before Judge Rice and a jury, and resulted in a verdict and judgment in favor of the plaintiff, from which this appeal is prosecuted by the State.
"It is familiar law that when a judgment is reversed or affirmed by the Supreme Court every point made and distinctly *Page 19 stated in the case must be considered as decided and is the law of the case on all subsequent trials. When such questions are decided they become res judicata, and the Court — after the remittitur has been handed down — cannot render a different decision in the case on any subsequent appeal, even if it should be convinced that there was error in its former decision. This proposition is in the language of the decisions on the subject. But on a new trial, in so far as the testimony is concerned, the parties are in the same position as they were before any trial was had. It would be a vain thing to order a new trial if the facts on the first trial were to govern on all subsequent trials. Therefore, when an appeal is had from a second or subsequent trial the first inquiry is whether on the new trial the testimony adduced makes out a substantially different case from that presented to the Court on the former appeal.
"A very careful examination of the record of the trial of this case before Judge Rice demonstrates that the testimony on behalf of the plaintiff in all material respects is the same as on the former trial, and while the defendant on this trial has offered additional evidence and with more elaboration developed the theory of its defense, there is no substantial change in the nature of the issues raised. The record presents now, as it did on the first trial, a conflict of testimony on behalf of plaintiff and defendant on the material issues in the case. This being true, the legal propositions announced by the Court on the former appeal are controlling and determinative of the same questions on this appeal. On the former appeal the Court held that the basis of this action was negligence; that the Act of the Legislature allows a recovery against the State for the negligence of its agents and servants; that the plaintiff had offered evidence tending to establish these allegations of negligence; that the Act did not create a new liability; that the liability already existed and was recognized at common law; that the only obstacle in plaintiff's path to the enforcement of it was the *Page 20 State's immunity from suit without its consent; that the Act by giving the State's consent to be sued provided a remedy; and, further, that the State had the power — acting through the Legislature — to recognize claims against it founded on justice and equity, and might even recognize some moral obligations. All of these questions are resjudicata, and these are the principal questions presented by this appeal. The other questions raised are merely those that would ordinarily arise in the trial of a case, in the ruling of the trial Judge on the admissibility of testimony, and in the charge to the jury.
"We have grouped the exceptions and will consider them in this way.
"Exceptions 1 to 5, inclusive, assign error on the part of the trial Judge in withdrawing from the jury the defense of contributory negligence. On the former appeal the Court held that there was no evidence to sustain this defense, and that it could very properly have been withdrawn from the jury. On this trial the testimony on this issue is substantially the same, and the trial Judge was right in withdrawing this defense.
"There is another reason why it would have been improper to submit this issue to the jury. This action — by consent of the State — was brought under the terms and provisions of our statute, commonly referred to as Lord Campbell's Act. It has been decided in numerous cases that the right of action under Lord Campbell's Act is a new one, and not a mere revival of the cause of action which belonged to the intestate; the right of the administrator to recover depends upon the right of the deceased to recover if he had survived the injury. If, therefore, the intestate could have recovered notwithstanding the contributory negligence of its parent, the plaintiff as administrator may recover in an action by the administrator under the provisions of under Lord Campbell's Act the contributory negligence of Lord Campbell's Act. In an action by the administrator *Page 21 the parent does not defeat the right of the administrator to recover. This particular action is brought and can only be maintained by the administrator under the provisions of Lord Campbell's Act. The writer of the opinion was under the impression that at common law the death of a human being, although clearly involving pecuniary loss, is not the ground of an action for damages, and that a father was not entitled to recover damages at common law for the negligent killing of his infant child, that a sovereign state at common law was not liable for the torts of its officers and agents. The Court, however, in this case on the former appeal, held `the Act [authorizing this suit] does not create a liability which did not exist before its passage.' The liability is one that is recognized by the common law. This holding is res judicata, and is not open to discussion or subject to a different opinion.
"Exceptions 9 and 12 assign error, in that his Honor refused to grant a nonsuit or to direct a verdict:
"(a) In that there was no testimony tending to establish negligence on the part of the State as the direct and proximate cause of the death of the intestate.
"(b) That the testimony shows that the State was acting in the capacity of an eleemosynary corporation; that the Act of the Legislature did nothing more than waive immunity of the State from suit by virtue of its sovereignty, but did not waive its immunity from liability for the torts of its agents.
"If these questions were for the first time before the Court, opportunity would be afforded for a full discussion and expression of opinion; but on the former appeal the Court held that there was testimony substantially tending to establish the allegations of negligence, and on this appeal plaintiff's testimony is in all material respects the same as on the former trial.
"The second ground of the motion on the former appeal was urged and necessarily embraced in the demurrer to the *Page 22 complaint which was overruled. The Constitution, as construed and applied by our Court in an unbroken line of decisions, gives a binding force and finality on this appeal to the former opinion, which admits of no question and precludes discussion. These exceptions for this reason are overruled.
"Exceptions 6 and 7 allege error in charging plaintiff's third request. Plaintiff's third request is as follows:
"`That the fact that injury to the plaintiff's intestate was not anticipated by the defendant could not excuse it in being negligent, if the jury find that the negligent acts of the defendant were a proximate cause of the injury, and that but for such negligence the injury would not have occurred.'
"In exception 6 the defendant assigns error that without modification the charge assumes the proof of negligence.
"In the seventh exception error is assigned that the charge disregards the doctrine enunciated in the Sandel Case on the former appeal, to wit, there may be concurring causes operating contemporaneously to produce the injury, and such as to have prevented the injury happening, in the absence of all or any of them, and that, unless such concurring causes through reasonable foresight and diligence could have been guarded against, liability would not have attached to the defendant.
"It is obvious that the request contains a sound proposition of law. Does it assume the proof of negligence as charged in exception 6? If considered entirely apart and without reference to the charge as a whole, the verbiage is inapt; but this is not the rule. The charge must be considered as a whole, and if, when so considered, it is free from error, the requirements of the law are satisfied. The purpose of a charge is to enlighten the jury on the principles of law applicable to the case on trial. If a charge to the jury contains conflicting propositions, a new trial should be granted. It is not possible to hope for a satisfactory finding of fact if the charge is so conflicting and confusing *Page 23 as to convey no clear and definite meaning to the jury who are to be guided by it. In this case the charge is remarkably clear and free from error. Judge Rice time and again instructed the jury that the basis of the action was negligence and that the burden was on the plaintiff to establish these allegations by the clear weight of the evidence to the satisfaction of the jury and that plaintiff must show that such negligence was the direct and proximate cause of the death of the child.
"Now, as to the error assigned by the seventh exception: The request as submitted was complete in and of itself and covered a proposition of law applicable to the case. If defendant wished further elaboration, it was its duty to call the matter to the attention of the Court. There was no error of law in the request as submitted, and it has never been held, so far as we recall, that the failure of the judge to elaborate a proposition so as to contain other pertinent and applicable principles is error. The law cannot all be charged in one sentence, nor in one request. All that is required is that the request contain a sound principal of law applicable to the case.
"The eighth exception assigns error in charging plaintiff's fifth request. The fifth request contains a perfectly sound proposition of law and was properly charged.
"The eleventh exception assigns error in excluding the letter of Dr. Walter to Dr. Coward, it being one of the many received by Dr. Coward in connection with his investigation. This letter is set out as an exhibit in the case and appears to be in reply to a letter from Dr. Coward in reference to lot No. 67 of the typhoid vaccine, which was the subject of investigation by Dr. Coward following the death of the Sandel children. The first few lines of the letter states that the doctor had used several doses of this lot of vaccine, the youngest patient 10 years old, and the next 12, and the others adults; that he had noticed nothing unusual in the way of severe reaction. The remaining portion *Page 24 of the letter states what Dr. Walter heard about the Sandel children eating bananas, and expresses the belief that their death was not due to the vaccine. The doctor does not claim to know anything about the facts and circumstances connected with the death of the Sandel children, and quite evidently he was not asked for anything by Dr. Coward in reference to this. The letter is so obviously hearsay as to require no further discussion, and was properly excluded. It is contended, however, that, since the report of Dr. Coward was admitted, this letter as one of many on which his report was predicated, should also be admitted. Counsel for appellant have furnished no citation of authority sustaining this contention, and we feel quite sure that none can be found. The report of Dr. Coward, if admissible, could only be by way of exception to the hearsay rule, and its admission in evidence would not make competent the source of inquiry and data gathered by Dr. Coward as the basis of his report. The letter of Dr. Walter must be considered in and of itself, and without reference to the report of Dr. Coward, and when so considered it is obviously mere hearsay and properly excluded.
"The tenth exception assigns error in admitting in evidence the report of Dr. Coward, because said report was hearsay and based upon unsworn-to correspondence. This report was made by the director of the State Laboratory to the Chief Executive Officer of the State Board of Health pursuant to a direct command from him that he make the investigation and report the results in the interest of medical research. The Constitution of 1895 imposes on the General Assembly the duty to create a board of health with full power and authority to make such regulations as will protect the health of the community and abate nuisances. Following this mandate of the Constitution, the General Assembly created the medical association and their successors in their corporate capacity, together with the Attorney General and the Comptroller General of the State and their successors *Page 25 as a Board of Health of the State of South Carolina, to be known as the State Board of Health. It is made the duty of this board through its representatives to investigate the causes, character, and means of preventing such epidemic and endemic diseases as the State is liable to suffer from. It has the right to make rules and regulations in line with its powers and duties which have the force of law with reference to the subjects covered by its authority. Its powers, duties, and responsibility are coextensive with the necessities and welfare of the State in all matters of health and sanitation. The State Health Officer, who is also the secretary of the board, is appointed by the Governor on the recommendation of the executive committee of the board, and his duties and authority are practically as broad and extensive as those conferred on the board.
"When this report was first offered in evidence, the trial Judge sustained the objection and ruled it out, holding that it must first appear that the report was official and authorized. Dr. Hayne was then called as a witness and testified that he was State Health Officer and ex officio secretary of the State Board of Health, and that he authorized and directed the investigation and report to be made by Dr. Coward for the purposes of medical research and information; that the report was not made officially, and was not incorporated in the annual report of the board to the General Assembly. After this the report was again offered and admitted in evidence over objection, and among others that it was not an official report and not made by an officer in the discharge of his statutory duties; that the said report was merely an unsworn-to document ex parte and hearsay evidence.
"There are a great many exceptions to the hearsay rule, and the question here is whether this report falls within one of the recognized exceptions. *Page 26
"`Whether a given statement was made under an official duty depends largely upon the nature of the office, the subject of the statement, and the form of its making. No express statute or regulation is needed for creating the authority or duty to make the statement. The existence of the duty and not the source of its creation is the sanctioning circumstance. Not all, nor the greater part, of an officer's conceded duties are placed upon him by the written law. They may arise from the oral and casual instructions of a superior, or from the functions necessarily inherent in the office. Where the nature of the office fairly requires or renders appropriate the making and recording of a specific statement, that statement is to be regarded as made under official duty.' Wigmore on Evidence, Vol. 3, Par. 1633.
"In the case of Evanston v. Gunn, 99 U.S. 660;25 L.Ed., 306, the admission in evidence of a record kept by a person employed by the United States Signal Service at Chicago was objected to for the reason that there was no law authorizing such records to be used, and because it was not competent testimony. The Supreme Court through Mr. Justice Strong, who delivered the unanimous opinion of the Court, held:
"`It may be admitted there is no statute expressly authorizing the admission of such a record, as proof of the facts stated in it, but many records are properly admitted without the aid of any statute. The inquiry to be made is, What is the character of the instrument? The record admitted in this case was not a private entry or memorandum. It had been kept by a person whose public duty it was to record truly the facts stated in it. * * * They are, as we have seen, of a public character, kept for public purposes, and so immediately before the eyes of the community that inaccuracies, if they should exist, could hardly escape exposure. They come, therefore, within the rule which admits in evidence "official registers or records kept by persons in public office in which they are required, either by *Page 27 statute or by the nature of their office, to write down particular transactions occurring in the course of their public duties or under their personal observation." Taylor, Evid. § 1429. 1 Greenl. Evid. § 483. To entitle them to admission it is not necessary that a statute requires them to be kept. It is sufficient that they are kept in the discharge of a public duty. 1 Greenl. Evid. § 496. Nor need they be kept by a public officer himself, if the entries are made under his direction by a person authorized by him. Galt v.Galloway, 4 Pet., 332. It is hardly necessary to refer to judicial decisions illustrating the rule. They are numerous.'
"Tested by the foregoing and the broad and far-reaching powers conferred on the board and its chief executive officer by the Constitution and statutes of the State, it is apparent that the report in this case was made and must be regarded as made under official duty. The report is in writing and refers to the specific subject-matter included in the duty and to all of the facts about which it was necessary to be informed in order to make the report. Dr. Wigmore, in his exhaustive work on Evidence, Vol. 3, Par. 1637, has grouped documents of this character into three classes as follows: Registers (or records), returns (including reports), and certificates (including certified copies).
"This document falls in the second classification, to wit, a return or report, which is defined by the same author, as:
"`Only a single document made separately for each transaction as occasion arises. It is distinguished from a record or a return proper in that a return deals with something personally done or observed by the officer, while a report merely records the results of his investigation as to something that has occurred out of his presence. It is sometimes referred to as an inquisition or inquiry, which suggests more clearly its special quality, namely, the resting upon means of information other than original personal observation. *Page 28
"`Inquisitions, which are of a public nature, and taken under competent authority, to ascertain a matter of public interest, are, upon principles already announced, admissible in evidence against all the world. * * * It is not essential to the reception of evidence of this nature that the inquiry should have been made by virtue of some judicial authority and by means of witnesses examined upon oath; it is sufficient if it was made by virtue of competent authority on behalf of the public and on a subject matter of public interest. * * * It is, however, of the very essence of evidence of this nature that the inquiry should have been made under proper authority; in general, therefore, unless the authority be in its nature notorious, it must be proved by the production of the commission; as in the case of an inquisitionpost mortem and such private offices.
"`It is this principle of express authority which serves to explain the attitude of the common law toward the use of inquisitions or reports.' Wigmore Evid. Par. 1670.
"This is the rule and the reason for the rule. It therefore very clearly appears that the objection to the report that it is ex parte and based on unsworn statements and hearsay is not the proper test. The circumstance that the report is based on information derived from sources other than the personal knowledge of the party making it is not sufficient to exclude it from evidence. The proper inquiry is as to the character of the instrument and whether made by virtue of competent authority on behalf of the public and on a subject matter of public interest. Applying these principles, the report of Dr. Coward was clearly admissible.
"Exception 13 assigns error in refusing defendant's motion for a new trial. The first seven grounds of the motion are identical with the exceptions which have already been considered and passed upon.
"The eighth, ninth, and tenth assign error in the charge of his Honor to the jury in the particulars stated. We have already — in considering the exceptions heretofore — *Page 29 held that the charge was free from error and contained a correct statement of the applicable law. This of necessity, involved a consideration of the errors assigned in these particular grounds, 8, 9 and 10, of the motion for a new trial. It would serve no good purpose to elaborate and discuss these in detail. They are without merit and overruled.
"The eleventh ground of the motion complains that the verdict of the jury shows that punitive damages were awarded in violation of the statutes authorizing this suit. It is true the verdict is for a large amount, but there is nothing in the record before us to indicate that it includes punitive damages. The trial Judge properly instructed the jury as to the correct measure of damages and it cannot be assumed — without some affirmative showing — that the jury disregarded the charge and included punitive damages. The measure of damage is fixed by the statute under which the action is brought, and the trial Judge charged the jury in the language of the Supreme Court construing the statute in this respect. In a law case this Court has jurisdiction to correct errors of law only, and cannot weigh or consider testimony about disputed matters of fact. This responsibility on a motion for a new trial is placed on the trial Judge, who has full power and authority, and whose duty it is in every case tried before him to see that the verdict is a true and just one."
The writer of this opinion desires to supplement said opinion with the following:
When I read the exceedingly able opinion of Mr. Justice Grier it was my intention merely to concur in it. But certain propositions announced by Mr. Justice Cothran, in his dissenting opinion, caused me to write a concurring opinion on one or two questions.
In order to understand clearly the rulings of Mr. Justice Hydrick, who delivered the opinion of the Court on the former appeal in this case, touching the demurrer to the complaint on the grounds therein mentioned, it will be necessary *Page 30 to quote somewhat at length the reason he assigns for overruling the demurrer. We thus quote:
"The defendant asked this Court to sustain the judgment on the grounds taken by a demurrer to the complaint which was overruled by the Circuit Court. The grounds of demurrer were that the act by authority of which this action was brought violates the following provisions of the Constitution: Section 5 of Article 1, which provides that no person shall be deprived of his life, liberty, or property without due process of law; Section 17 of Article 3, which provides that every act shall relate to but one subject, which shall be expressed in its title; and Section 34 of Article 3, which prohibits the enactment of special laws on certain specified subjects, and provides that, in all other cases where a general law can be made applicable, no special law shall be enacted. The demurrer was properly overruled.
"The provision first cited is a limitation upon the power of the State, and was intended to protect the citizens against arbitrary action on the part of the State. The act does not deprive any person of his life, liberty, or property. Nor can it be said that it may result in depriving the State of its property, for `deprived' connotes want of consent, and the State has given its consent. Certainly the deprivation, if it can be so called, will not be without due process of law, for that is provided for in the requirement that plaintiff's claim shall be established in an action in a Court of competent jurisdiction. The State, acting through the Legislature,had the power, which it always has and shouldexercise on proper occasion, to recognize claims against it,founded on justice, and equity. It may even recognize somemoral obligations. Graham v. State, 109 S.C. 301;96 S.E., 138. The act does not create a liability which didnot exist before its passage. The liability is one that isrecognized by the common law. The only obstacle that layin plaintiff's path to the enforcement of it was the State'simmunity from suit without its consent. The act, therefore, *Page 31 by giving consent, merely provides a remedy wherenone existed before.
"The title of the act reads: `An act to authorize and empower the administrator or administrators of Thelma Sandel and Minnie Sandel, deceased, to bring an action against the State of South Carolina.'
"There is no provision of the act which is not germane to the title or fairly within its scope.
"The provision last mentioned was not intended to apply to an act of this kind. It has never been the policy of this State to give general consent to be sued in the Courts on its liabilities. Whether it will consent or not has always been made to depend upon the facts and circumstances peculiar to each case, or class of cases, and the right to determine each application on its own merits has been exercised by the Legislature under every Constitution that has been adopted. It has been exercised under the present Constitution ever since its adoption in 1895, and in numerous cases. Nowhere in the Constitution is there any express declaration of intention to depart from that well known policy; but a contrary intention is plainly to be implied from the circumstances that the provisions of Section 2 of Article 17, that `The General Assembly may direct by law in what manner claims against the State may be established and adjusted.'"
"The letter of a particular provision will not prevail over the clear intention to be gathered from the whole instrument. A general law, consonant with the settled policy of the State, cannot be made applicable in the circumstances under which this act was passed. They were novel and extraordinary. Such an event never occurred before, and may never happen again. The very nature of the case called for a special rather than a general law."
Mr. Justice Cothran, in his dissenting opinion, after quoting the language from the opinion of Mr. Justice Hydrick, which we have italicized, says: *Page 32
"The question at issue upon this phase of the case under discussion by the Court, was the demurrer of the State to the plaintiff's complaint. The grounds of the demurrer, as gathered from the opinion, all that the Court now has access to, were that the act of 1918 violates the three provisions of the Constitution: (1) The due process clause; (2) the requirement that every act shall relate to but one subject which shall be expressed in its title; (3) the inhibition against special legislation. 115 S.C. 181;104 S.E., 571; 13 A.L.R., 1268. The three objections are taken up and disposed of against the contention of the State. With that conclusion the Court is now in this case absolutely bound; it is not only res judicata but the law of the case. The declaration that no new liability was created by the act was entirely proper in disposing of the constitutional objection which had been raised, that the body of the act was more extensive than the title. It is the only ground as we shall see, upon which the constitutionality of the act, so far as this objection was concerned, could have been sustained. The other propositions announced are entirely foreign to the issue, are therefore obiter, and are so crowded with error that they cannot be followed."
He also used this language:
"It is conceded that the State, by the act of 1918, has waived, in favor of the plaintiff, its immunity from suit; and the pivotal question is, has it by that Act conferred upon the plaintiff the right, which theretofore did not exist, to recover damages for an injury resulting from the negligence of its agents?
"The title of the act is significant: `An act to authorize and empower the administrator or administrators of Thelma Sandel and Minnie Sandel to bring action against the State of South Carolina.'
"There is certainly nothing in the title indicative of a purpose to do aught than to waive the State's immunity from *Page 33 suit; which alone is expressed in the permission `to bring action.'
"In the body of the act the permission is given to bring action `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.'
"There is no direct indication that the action is to be based upon the negligence of the agents of the State, or that the State intended to waive its immunity from liability on account of such negligence. Doubtless the inference isreasonable that the foundation of the suit was expected tobe the negligence of the State's agents; but there is not even an inference that the State intended to waive its immunity from liability on account thereof." (Italics added.)
It is conceded that the act waives the immunity of the State from suit, but it is contended that the plaintiff has not a good cause of action by reason of the fact that there is nothing in the act which manifests an intention on the part of the Legislature to waive, also, its immunity from liability. This question involves the construction of the act, the title of which is as follows:
"An act to authorize * * * the administrator or administrators of Thelma Sandel and Minnie Sandel, deceased, to bring action against the State of South Carolina."
The act provides as follows:
"That the administrator or administrators of Thelma Sandel and Minnie Sandel, deceased, are hereby authorized and empowered to bring 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. The action or actions, shall be brought *Page 34 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, herebyauthorized 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." (Italics added.)
Section 3955 aforesaid is as follows:
"Whenever the death of a person shall be caused by the wrongful act, neglect, or default of another, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person or corporation who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, although the death shall have been caused under such circumstances as make the killing in law a felony."
Section 2, Art. 17, of the Constitution is as follows:
"The General Assembly may direct by law, in what manner claims against the State may be established and adjusted."
In construing the Act there are certain well-established principles to which we desire to call attention. They are as follows:
"It must always be conceded that the proper authority to determine what should and what should not constitute a public burden is the legislative department of the State. *Page 35 And in determining this question the Legislature cannot be held to any technical rule. Not only are certain expenditures essential to the continued existence of the government and the performance of its ordinary functions, but as a matter of policy it may sometimes be proper to assume other burdens that rest entirely on considerations of honor, gratitude, or charity. There will, therefore, be necessary expenditures, and expenditures which rest upon considerations of policy only, and, in regard to the one, as much as to the other, the decision of that department to which alone questions of State policy are addressed, must be accepted as conclusive." Cooley, Con. Lim., 599, 600.
"We think there can be no doubt that the General Assembly has the power to authorize taxation for any public purpose. In fact, that, in the absence of a constitutional inhibition, this power is inherent and unlimited, with no check except the intelligence of the representative and the ballot box of the elector. Cooley, Con. Lim., and the cases ther cited. Feldman v. City Council, 23 S.C. 57; 55 Am.Rep., 6. * * * What is the meaning of the term `public'? This term is opposed to the term private, and, according to the best lexicographers, means, `pertaining to, or belonging to, the people, relating to a nation, state, or community.' * * * There is high authority for saying that such legislation would be valid with or without the consent of the people. The only check to an unwise exercise thereof, as we have said above being not the Courts, but the intelligence of the General Assembly and the ballot box." State v.Whitesides, 30 S.C. 584, 585; 9 S.E., 661; 3 L.R.A., 777.
These authorities are in accord with the principles announced in the case of Graham v. State, 109 S.C. 301;96 S.E., 138.
In the light of these authorities, we proceed to the construction of the act for the purpose of determining whether it shows upon its face, that it not only waived the immunity *Page 36 of the State from suit, but likewise the immunity of the State from liability.
The act provides (1) that the representative of the plaintiff was thereby authorized and empowered to bring action against the State for the recovery of damages on account of the death of the plaintiff, following the injection of serum furnished by the State. Why was the Legislature willing to allow an action against the State for the recovery of damages? The answer is in the act itself: On account of the death of the Sandel children, following the injection of serum furnished by the State of South Carolina. The Legislature, realizing the great importance of vaccination, as a preventive of smallpox, and that it was of the deepest interest to the public, knew that something had to be done to restore public confidence in vaccination when the serum injected was furnished by the State of South Carolina. No doubt the tendency of this act was to assure the public that the State would use every precaution to guard against fatal results; and that it would in exceptional cases of hardship, endeavor to repair the wrong by giving pecuniary relief to the family of the unfortunate victims, where death resulted from impure serum furnished by the State. The act was therefore intended to subserve a public purpose.
Furthermore, if the Legislature did not intend to waive the immunity of the State from liability, why did it prescribe the remedy for recovering damages, if it did not intend that damages could be recovered on the conditions mentioned in the act? The presumption is that the Legislature intended practical results, and not to keep the promise to the ear, and break it to the hope, by creating an action with a string to it, and which could not be enforced.
It is also contended that the words, "the liability is one that is recognized at common law," are mere obiter and, as they state an erroneous principle of law, that there is nothing in the case showing liability on the part of the State; and therefore that the plaintiff cannot sue for *Page 37 damages; in other words, that the complaint does not state facts sufficient to constitute a cause of action.
In the first place there is no exception raising this question. Furthermore, we have set out the facts at length concerning this statement, to show that it was merely a reason assigned by Mr. Justice Hydrick for his ruling that the grounds of demurrer to the complaint were properly overruled. It is not deemed necessary to cite authorities to sustain the proposition that the reasons assigned by the Court form no part of the judgment.
Again, even if there was error in the principle announced in the former opinion, it is res adjudicata. In the case ofCarpenter v. Lewis, 65 S.C. 400; 43 S.E., 881, the Court said:
"When this Court rendered the former opinion in this case, it was under the impression that the foregoing calculation was in conformity with the principles therein announced. In this it now sees it was mistaken. Nevertheless, that question is res judicata as to the defendant."
See, also, Jones v. Ry., 65 S.C. 410; 43 S.E., 884.
There are no other grounds of demurrer now before the Court than those which were before the Court on the former trial. It is not denied that the doctrine of res adjudicata is applicable to them. The effect of granting a new trial, for error in the reason assigned in showing that the demurrer was properly overruled, would be to make the reasoning of the Court paramount to its ruling upon the question under consideration. It is not necessary to determine whether the language used on the former appeal was erroneous, for even though it should be conceded that they were erroneous, the doctrine of res adjudicata is applicable to them. But even if the doctrine of res adjudicata is not applicable, and it should even be conceded that the ruling was erroneous, the error, however, would be immaterial for the reason that we have already shown the act created a liability on the part of the State. Furthermore, *Page 38 if the construction which we have placed upon the act as to the creation of a liability on the part of the State, and the ruling of Mr. Justice Hydrick that the liability is one that is recognized at common law are inconsistent. Nevertheless, when there are two inconsistent rulings, the conclusion of the Court will be referred to that which is based upon a sound principle, and the other ruling will be disregarded as surplusage.
The judgment of this Court should be that the judgment of the Circuit Court is affirmed.
MR. JUSTICE WATTS and MESSRS. R.W. MEMMINGER and I W. BOWMAN, Circuit Judges, concur.