Action by plaintiff as administrator of the estate of Thelma Sandel, on account of the alleged wrongful death of the intestate, caused by the administration of impure typhoid vaccine, manufactured and supplied by the State Board of Health.
The action against the State was instituted under the authority of an act approved March 9, 1918, 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 Stat. 1097.
The act authorizes the action to be brought —
"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 complaint alleges that the infection which followed the injection of the serum was caused by the contamination of the serum or vaccine with pus germs, rendering it impure and unfit for administration to a human being; that the contamination was due to the negligence of the agents of the State in the manufacture of the serum in certain specified *Page 39 particulars which need not be detailed referring to the manner of handling, bottling, and inspection of the medicine, and to the condition of the laboratory in which it was manufactured.
The answer contains a denial of the material allegations of the complaint, and sets up as a defense the contributory negligence of the plaintiff in not observing the precautionary measures required in administering the vaccine, or in the care of the patient, or in the failure to observe directions.
It may be stated in this connection that the plea of contributory negligence is set forth in an inartificial fashion; but, as no objection was made to its form by demurrer or motion, the objections urged by the respondent in argument will not be considered.
Separate actions were instituted by the plaintiff as administrator of the two children. The two cases were tried together before Judge Sease and a jury, and a verdict was rendered in each case in favor of the defendant. Upon appeal this Court reversed the judgments and remanded the cases for new trials. The case of Thelma Sandel was then brought to trial before Judge Rice and a jury, and resulted in a verdict of $25,250 in favor of the plaintiff. From the judgment entered upon that verdict the defendant has appealed.
The evidence tended to establish the following facts:
The plaintiff lived with his family, a wife, and (at least) two children, girls, both under 5 years of age, near Lone Star, in Calhoun County; on the morning of July 13, 1915, Dr. Browning, the family physician, was at the Sandel home, and the suggestion was made that the two girls be vaccinated with the antityphoid serum. It was done about 11 a. m., and the parents were advised "to keep the children as quiet as possible and to give them a very light diet;" at dinner they were given only rice and milk; about 4:30 p. m. the same day Mrs. Sandel took the two girls with her to Lone Star, some two miles distant. They returned home, *Page 40 showed symptoms of illness very soon thereafter and grew rapidly worse; Dr. Browning was called about 3 a. m., during the night, but could do nothing for them; Thelma died about 6 o'clock a. m. and Minnie the following morning.
Upon report of the deaths of these children, Dr. Hayne, secretary and chief executive officer of the State Board of Health, ordered an investigation and report. Accordingly Dr. Coward, director of the laboratory in which the serum was manufactured, bottled, and distributed, made a full and thorough investigation and report, which is set out in the "case." From the report alone there is sufficient ground for a reasonable inference that the serum was contaminated and that its administration caused the deaths of the children. There was at least sufficient evidence of these facts to require the submission of the issue to the jury, and that the contamination was due to the negligence of the agents of the State engaged in the manufacture, bottling, and handling of the serum. Opposed to this theory was considerable evidence on the part of the State that the deaths were due to protein poisoning, and could not have been caused by the inoculation of the pus germs which the serum admittedly contained; though this is weakened by the admission of Dr. Coward that "criticism can only be directed at the failure of technic to produce and administer a pure vaccine." At any rate this was a question for the jury, which was properly submitted to them and their verdict shows a resolution of the issue against the State. In the present state of the case it must be assumed, therefore, that the deaths were due to contamination of the serum created by the negligence of the State's agents.
The Circuit Judge, upon motion of the plaintiff, directed the jury, in conformity with his construction of the opinion upon the former appeal, that there was no evidence tending to sustain the defense of contributory negligence, and eliminated that issue from their consideration. *Page 41
The appeal presents, among others, the following questions for discussion:
(1) Was there error in withdrawing from the consideration of the jury the question of the contributory negligence of the plaintiff and his agents?
(2) Was there error in admitting the report of Dr. Coward?
(3) Was there error in excluding the letter of Dr. Walter?
(4) Was there error in not holding that the State was not liable at common law, or under the act of 1918, for the negligence of its agents?
(5) Was there error in not holding that the State, in the matter of distributing free antitoxin, occupied the position of a charitable institution, and was not on that account liable either at common law or under the Act of 1918, for the negligence of its agents?
Other questions are raised by the exceptions, the consideration of which is rendered unnecessary by the disposition of the foregoing.
1. The first question: Was there error in withdrawing from the consideration of the jury the question of the contributory negligence of the plaintiff and his agents?
There was abundant testimony that the parents of the children flagrantly disobeyed and disregarded the positive and specific instructions of the family physician as to the treatment of the children following the inoculation. It was testified to by the expert physicians that after the inoculation absolute quiet and inaction were essential; so much so that inoculation should be made in the afternoon to insure restfulness at the normal period of reaction. Dr. Browning testified: "I cautioned Mrs. Sandel to keep the children quiet as possible and to give them a very light diet;" that the normal time for the reaction was about 4 or 5 o'clock that afternoon; and that the reaction in this case came at the normal time. About 4:30 p. m. Mrs. Sandel took the *Page 42 two children with her in an open buggy, through the hot July sun, to Lone Star, about 1 1/2 or 2 miles distant; as soon as they returned both were taken sick. Dr. Parker testified: "In my opinion evidently the children had stirred around too much in the hot sun." Mr. Sandel testified: "I reckon that ride kind of got her stirred up." Dr. Walter testified: "If at about the time for the normal reaction those children were permitted, on the 15th day of July, which we can reasonably assume was a very hot day, to go a mile and a half to a neighboring town and back, I would consider that would tend to augment or exaggerate the reaction, and I think it would also lower their resistance, if the reaction took place." Dr. Ward testified: "If these children were vaccinated at 11 o'clock of that day and permitted to go to a town a mile and a half away in the afternoon at 4 o'clock, about the usual time for the reaction, that would have a tendency to make it much more severe."
It appears that the mother and father were both inoculated at the same time and with serum of the same lot; the reaction in their cases was not exaggerated; also that the reaction in an adult is usually more severe than in a child; which facts reasonably tend to support the inference that there must have been some abnormal condition in the children, produced by the failure to observe the precautions given or by some other cause.
It is contended by the respondent that the testimony upon the issue of contributory negligence is the same upon this trial as upon the first, and that the Court having held in its opinion upon the former appeal that "there was no evidence to sustain that defense," the matter is res judicata.
Neither of these positions should be sustained. In the first place, the record of the evidence taken upon the first trial is not now before the Court, and the Court has no opportunity to compare it with the evidence upon this trial and thereby to verify the statement that they are practically *Page 43 the same. All that appears in this record, as to what was in evidence upon the former trial, is a brief abstract, in which it is stated that both Mr. Sandel and Mrs. Sandel testified that all precautionary measures were taken in the inoculation and treatment of the children, and that they were not permitted any indulgences or indiscretions, that they had been properly guarded against any indiscretions or otherwise; a very different statement from her testimony in this trial as to carrying them through the hot sun of a July day at the very period of normal reaction, and of his testimony: "I reckon that ride kind of stirred her up."
In the second place, the question of the sufficiency of evidence of contributory negligence to carry the question to the jury was not before the Court for decision upon the former appeal. The remarks of the learned Justice who wrote the opinion, therefore, are entirely obiter, and not binding as res judicata. It is inconceivable that if the testimony as to contributory negligence adduced upon this trial had been before the Court then, such a conclusion could have been reached.
Upon the former trial the defendant had a verdict, and the plaintiff was appealing. One of his grounds of appeal was that the children were presumed from their ages to have been incapable of contributory negligence, and that the negligence of their parents could not be imputed to them. That was the question up for decision, not the sufficiency of the evidence as to contributory negligence. The Court overruled the appellant's position, saying:
"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 * * * for the consequences *Page 44 of their own negligence. No one is allowed to take advantage of his own wrong."
That was a clear-cut and decisive determination of the only point at that time before the Court. The opinion then declares:
"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."
Passing by the evident inadvertence of the suggestion that a verdict could have been directed upon that issue, it is clear that this observation, in the absence of a motion by the plaintiff that the issue be eliminated, was in reference to an issue not then before the Court and must be consideredobiter. In addition to the evidence in this trial of the careless conduct of the parents, there was also evidence not only that the inoculation should not have been made in the forenoon, but that children of these ages should not have been inoculated at all, which tends to establish negligence on the part of the family physician, the agent of the plaintiff. We do not mean to reflect upon his professional conduct, but to declare the inferences that might have been drawn from the evidence upon the issue of contributory negligence.
The principle announced, quoted above, as to contributory negligence, has strong support in the decisions of other Courts, as will be seen by reference to the notes to 18 L.R.A. (N.S.), 328, and 38 L.R.A. (N.S.), 754. Whether or not it was the purpose of the Court to overrule Watsonv. R. Co., 66 S.C. 47; 44 S.E., 375, which apparently states a contrary doctrine, need not be considered; for, regardless *Page 45 of the effect of the decision upon that case, it constitutes the law of this case.
It appearing therefore that there was pertinent and substantial evidence upon the issue of contributory negligence, it was reversible error to withdraw it from the jury's consideration.
2. The second question: Was there error in admitting the report of Dr. Coward?
The reasoning and conclusion of Mr. Justice Grier upon this question are not in accord with my conclusion. I concur in the opinion of Mr. Justice Marion in the disposition of it.
3. The third question: Was there error in excluding the letter of Dr. Walter? This question need not be considered.
4. The fourth question: Was there error in not holding that the State was not liable at common law, or under the Act of 1918, for the negligence of its agents?
Independently of the matter of the State's immunity from suit, it is thoroughly established that no government or governmental subdivision is responsible in damages for the torts of its agents unless expressly made so by statute.Hopkins v. College, 221 U.S. 636; 31 Sup. Ct., 654;55 L.Ed., 890; 35 L.R.A. (N.S.), 243. The State, therefore, cannot be held liable in damages for the negligence of its agents, the admitted basis of this action, unless by statute the State has not only waived its immunity from suit, but has expressly conferred upon the plaintiff the right to recover damages against it for the negligence of its agents.
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 *Page 46 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 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 is reasonable that the foundation of the suit was expected to be 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.
It is contended by the respondent that the question is concluded by the judgment of the Court upon the former appeal. We do not so understand the opinion. If it holds that in addition to the waiver of immunity from suit, the State has also waived its immunity from liability for the torts of its agents, then clearly the Act confers upon the plaintiff a right, and imposes upon the State a liability, which did not theretofore exist; that is, a right to recover from the State damages for the torts of its agents, and a corresponding obligation on the part of the State to respond thereto. Yet we find the most unequivocal declaration in the opinion: "The Act does not create a liability which did not exist before its passage." If that be true, and it must be conceded that the declaration is res judicata the law of the case, binding upon the Court upon this appeal, *Page 47 the controversy is ended; the Act amounts only to a waiver of immunity from suit, leaving all other defenses open to the State.
But, it has been suggested, the opinion practically holds that independently of the Act, the State is liable for the torts of its agents; and to that extent the judgment is res judicata. Let us see. The Court declares:
"The State, acting through the Legislature, had the power, which it always has and should exercise on proper occasion, to recognize claims against it, founded on justice and equity. It may even recognize some moral obligations.Graham v. State, 109 S.C. 301; 96 S.E., 138. The actdoes not create a liability which did not exist before itspassage. The liability is one that is recognized by the commonlaw. The only obstacle that lay in plaintiff's path to the enforcement of it was the State's immunity from suit, without its consent. The act, therefore, by giving consent,merely provides a remedy where none existed before." (Italics added.)
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, *Page 48 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.
It is declared: "The liability is one that is recognized by the common law." This must refer either to the liability of the State for the torts of its agents, or to the liability of the State, or of the agents of the State, to the father, for the wrongful death of his child, neither of which propositions can be sustained. As shown above, the State is the government, and it cannot be held liable for the tort of its agent without specific statutory authority therefor. It is further not only immune from liability at common law, but immune from suit. Even the agent of the State, at common law, as an individual, could not be held liable to the father for the wrongful death of his child, it required Lord Campbell's Act to create that liability. In Edgar v.Castello, 14 S.C. 20; 37 Am. Rep., 714, it is held:
"A father is not entitled to recover damages for the negligent killing of his infant child."
The declaration in the former opinion:
"The only obstacle that lay in plaintiff's path to the enforcement of it [liability] was the State's immunity from suit, without its consent," is far from an accurate statement of the law; and was not at all necessary to the determination of the question then before the Court, whether or not a new liability was created by the act. Two insuperable obstacles were yet in the plaintiff's path after the State's immunity from suit had been waived: (1) The nonliability of the State for the torts of its agents. (2) If ordinarily otherwise, the doctrine of respondeat superior will not be extended to charitable institutions.
In Claussen v. Luverne, 103 Minn., 491;115 N.W., 643; 15 L.R.A. (N.S.), 698; 14 Ann. Cas., 673, it is said: *Page 49
"It is elementary that neither the State nor any of the subdivisions, like a municipality, through which it operates, is liable for torts committed by public officers, save in definitely excepted classes of cases. The exemption is based upon the sovereign character of the State and its agencies, and upon the absence of obligation, and not on the ground that no means for remedy have been provided. "The government,' said Mr. Justice Story, `does not undertake to guarantee to any person the fidelity of the officers or agents whom it employs, since that would involve it in all its operations in endless embarrassments, difficulties, and losses, which would be subversive of the public interest.' UnitedStates v. Kirkpatrick, 9 Wheat., 720; 6 L.Ed., 199; Beersv. Arkansas, 20 How., 527; 15 L.Ed., 991."
None of the propositions advanced by the Court were necessary to the determination of the constitutional questions involved, as was the proposition that no new liability was created by the Act. We are bound by the conclusions that the Act is constitutional and that no new liability was created by it, but we are not bound by the erroneous basis of those conclusions.
In the light of the ruling upon the former appeal that the Act created no new liability, it is unnecessary really to go further; but in view of the plainly erratic grounds upon which that ruling was based, it may not be amiss to demonstrate that the ruling is sound and sustainable upon other and firm grounds.
The conclusion may have been sustained upon either of two grounds: (1) Without an express declaration of a purpose to create a new liability, of which there is none, the permission to sue will be confined to a waiver of the State's immunity from suit. (2) It was beyond the constitutional power of the Legislature to create a liability on the part of the State for an act, direct or imputed, for which it was not liable at the time of its commission; such legislative *Page 50 action being in contravention of Article 10, § 11, and Article 17, § 2, of the Constitution.
As to the first proposition, that without an express declaration of a purpose to create a new liability, the permission to sue will be confined in its effect to a waiver of the State's immunity from suit:
In State v. Hill, 54 Ala., 67, the State was operating a railroad, and in that operation stock of the plaintiff was killed on the track by reason of the negligence of the engineer. The plaintiff sued under a statute which permitted a citizen to sue the State, which suit should be governed by the same rules as in suits between individuals. The Court held that when, by constitutional provision or legislative enactment, the State has permitted itself to be sued, the mere fact of permitting the suit against itself does not render the State liable for the careless or negligent acts of its servants, employees or agents, in the absence of any statute expressly fixing such liability upon the State.
In Smith v. State, 227 N.Y., 405; 125 N.E., 841: 13 A.L.R. 1264, the State was in possession and control of a certain reservation at Niagara Falls; the reservation was under the management of a commission. The plaintiff tripped and fell, sustaining serious injury, on account of a wire that had been negligently allowed to obstruct a path along which he was walking. He sued the State in the Court of Claims, which was authorized by statute to hear and determine private claims against the State. The statute (Code Civ. Proc., § 264) contained this provision:
"In no case shall any liability be implied against the State, and no award shall be made on any claim against the State except upon such legal evidence as would establish liability against an individual or corporation in a Court of law or equity."
The Court, after stating the general rule, well settled, that a State is not liable for injuries resulting from the negligence of its officers and agents, in the absence of a *Page 51 constitutional or legislative enactment, and basing that principle, distinct from the State's immunity from suit, on grounds of public policy, declares:
"It is contended * * * that by consenting to be sued the State waives its immunity from action, and nothing more. It does not thereby concede its liability in favor of the claimant, or create a cause of action in his favor which did not theretofore exist. It merely gives a remedy to enforce a liability and submits itself to the jurisdiction of the Court, subject to its right to interpose any lawful defense.Roberts v. State, 160 N.Y., 217; 54 N.E., 678. Immunity from an action is one thing. Immunity from liability for the torts of its officers and agents is another. Immunity from such liability may be waived by some positive enactment of the Legislature. This, as I read the section of the Code under consideration, the Legislature has not yet done.
"Statutes in derogation of the sovereignty of the State must be strictly construed, and a waiver of immunity from liability must be clearly expressed. Litchfield v. Bond, supra. There certainly is not in the section an express waiver of the State's immunity from liability for the tortious acts of its officers and agents, and the words used will not, in my opinion, permit of such construction. * * *
"The immunity of the State from liability for the torts of its agents is based, as I have already indicated, upon the broad ground of public policy, and it is not waived by a statute conferring jurisdiction only. In the absence of a legislative enactment specifically waiving this immunity, the State cannot be subjected to a liability therefor."
"The State is not liable in damages for the death of a militiaman, caused by the negligence and incompetence of one of its physicians in vaccinating him, unless liability therefor has been voluntarily assumed by legislative act; the State, by Code Civ. Proc., § 264, not consenting to suit for torts of its agents while performing an act of the State *Page 52 in its sovereign capacity." McAuliffe v. State, 107 Misc Rep., 553; 176 N.Y. Supp., 679.
"The cases seem uniformly to hold not only that States cannot be sued without their consent, but further that even when by constitutional provision or legislative enactment the State has permitted itself to be sued, the mere fact of permitting the suit against itself does not render the State liable for the careless or negligent acts of its servants, employees or agents, in the absence of any statute expressly fixing such liability upon the State." Davis v. State, 30 Idaho, 137;163 Pac., 373; Ann. Cas. 1918D, 911.
In Stephens v. Commrs., 93 N.J. Law, 500;108 Atl., 645, the Court said:
"It is urged that the express power to sue and be sued indicates an intent to subject defendant to liability in damage suits. But this same point was considered and overruled in the Strader Case." 18 N.J. Law, 108; 35 Am. Dec., 530.
In Denning v. State, 123 Cal., 316; 55 Pac., 1000, the action was by an employee of the harbor commissioners, agents of the State, for damages on account of personal injuries sustained by him as a result of their negligence. It was sought to maintain the action under a statute which provided:
"All persons who have, or shall hereafter have, claims on contract or for negligence against the State not allowed by the State Board of Examiners, are hereby authorized, on the terms and conditions herein contained, to bring suit thereon against the State in any of the Courts of this State of competent jurisdiction, and prosecute the same to final judgment. The rules of practice in civil cases shall apply to such suits, except as herein otherwise provided."
The Court, rejecting the contention, said:
"This statute has been considered by this Court in at least two cases, arising under different facts, and in both it was held that said statute did not create any liability or *Page 53 cause of action against the State where none existed before, but merely gave an additional remedy to enforce such liability as would have existed if the statute had not been enacted."
In Burroughs v. Commonwealth, 224 Mass. 28;112 N.E., 491, Ann. Cas., 1917A, 38, the Plaintiff sued for damage to his land by fire negligently set by the agents of the State, and relied upon a statute which gave the Court jurisdiction of all claims against the State, whether at law or in equity. The Court held that while the terms of the statute were "full and comprehensive, it is not to be interpreted as imposing any new obligation upon the commonwealth, or as creating a new class of claims for which a sovereignty never has been held responsible, but * * * `to provide a convenient tribunal for the determination'" of such claims. "The statute cannot be stretched to include damages for an ordinary tort committed by an officer or employee of the commonwealth in the performance of duties prescribed by law."
In Apfelbacher v. State, 160 Wis. 565; 152 N.W., 144, the plaintiff sued under a special statute permitting him to sue the State for the purpose of "settling and determining all controversies which he may now have with the State of Wisconsin or its duly authorized officers and servants" relative to the operation of a certain dam, which he alleged caused damage to his property. The Court says:
"Plaintiff claims that by the enactment of this law the Legislature admitted liability on the part of the State for the Acts of its officers, and that the suit now stands just as it would stand between private parties. It is difficult to see how the Act does, or was intended to do more than remove the State's immunity from suit. It simply gives authority to commence suit for the purpose of settling plaintiff's controversies with the State. Nowhere in the Act is there a whisper or suggestion that the Court or Courts in the disposition of the suit shall depart from well-established principles *Page 54 of law, or that the amount of damages is the only question to be settled. The Act opened the door of the Court to the plaintiff. It did not pass upon the question of liability, but left the suit just where it would be in the absence of the State's immunity from suit. If the Legislature had intended to change the rule that obtained in this State so long and to declare liability on the part of the State, it would not have left so important a matter to mere inference, but would have done so in express terms."
In Riddoch v. State, 68 Wn., 329; 123 Pac., 450; 42 L.R.A. (N.S.), 251 Ann. Cas., 1913E, 1033, the plaintiff sued for damages resulting from the fall of a balcony, under control of the State's agents, due to their negligence. He sought to maintain his action under constitutional and statutory provision of force at the time of his injury. The Constitution provided:
"The Legislature shall direct by law in what manner and in what Courts suits may be brought against the State."
Construing it the Court says:
"This provision creates no [new] cause of action, imposes no liability, as against the States, where none would exist independently of it. It merely directs the Legislature to provide a remedy for causes of action recognized at common law as against the sovereign, or created by statute."
The statute provided:
"Any person or corporation having any claim against the State of Washington shall have the right to begin an action against the State in" a certain Court.
The Court says:
"The word `claim,' as used in this section, is synonymous with `cause of action.' The scope of the section is the same as that of the constitutional provision. * * * It creates no cause of action. It provides a remedy for existing causes, but imposes no new liability. It does not waive any defense." *Page 55
"Legislative Acts authorizing individuals to sue the State upon claims which the Legislature for any cause does not see fit to recognize and pay have been passed in many of the States. Their purpose and effect, as commonly understood, are undoubtedly nothing more than to refer to the judiciary the settlement of the questions of law and fact involved in the claims, and the determination in the form of a judgment of the rights of the parties." 25 R.C.L., 416.
In Oakes v. United States, 174 U.S. 778;19 Sup. Ct., 864; 43 L.Ed., 1169, the plaintiff sued the United States for the value of a steamboat alleged to have been captured by United States forces and fitted for use by them. The suit was brought under a special Act of Congress authorizing it in the Court of claims, which was directed to determine the just rights in law of the claimant. The Court held:
"The Act neither recognizes the claim as a valid one, nor undertakes to pass upon its validity; but simply empowers the Court of Claims to hear and determine whether the claim is valid or invalid; and the determination of that issue embraces not only the questions whether the claimant was the daughter and heir at law of Worthington, whether he was a loyal citizen of the United States, whether he was the owner of three-fifths of the Eastport, and whether the vessel was taken and applied to the use of the United States, but all other questions, of law or of fact, affecting the merits of the claim."
In United States v. Cumming, 130 U.S. 452;9 Sup. Ct., 583; 32 L.Ed., 1029, the plaintiff sued the United States for damages sustained in consequence of certain Acts of a collector of internal revenue. The suit was brought under a special Act of Congress, authorizing it in the Court of Claims, which was directed to pass upon the law and the facts as to the liability of the United States for the Acts of the officer, waiving the Statute of Limitations. The Court *Page 56 held that there was a waiver of the defense based upon the Statute of Limitations, but not a waiver of the defense based on the general principle of the law that the United States is not liable for unauthorized wrongs inflicted on the citizen by officers while engaged in the discharge of official duties. There does not appear to be a material difference between the authority "to pass upon the law and the facts as to the liability of the United States for the Acts of its officer," as in this case, and the authority to recover "such damages as may be proper if any, on account of the death * * * following the injection of serum furnished by the State of South Carolina," as in the case at bar. The Court said:
"It is evident that Congress intended to open the doors of the Court of Claims to the plaintiffs, so far as to permit them to sue the government, unembarrassed by any defense of the Statute of Limitations, and to obtain an adjudication, based upon `the law and facts,' as to the liability of the United States for the wrongs of which complaint is made. In other words, the jurisdiction of the Court of Claims was so enlarged as to embrace this particular demand and to authorize such judgment as, under all the evidence, would be consistent with law. Here, however, we are met with the suggestion that there is a general principle, applicable, as this Court said, in Gibbons v. United States, 8 Wall., 269, 275, to all governments which `forbids, on a policy imposed by necessity, that they should hold themselves liable for unauthorized wrongs inflicted by their officers on the citizen, though occurring while engaged in the discharge of official duties.' Did Congress intend to abrogate this principle so far as the demands of the present plaintiffs are concerned? Did it invest the Court of Claims with jurisdiction to render a judgment against the United States upon its appearing that the revenue officers transcended the authority conferred upon them by law, or had exercised their authority in such manner as made them personally liable in *Page 57 damages to the plaintiff? There would be some ground for an affirmative answer to these questions if the statute had not required the Court to pass upon both the law and the facts `as to the liability of the United States.' If the facts disclosed a case of unauthorized wrongs done to the plaintiffs by the revenue officers of the United States the question, by the very terms of the Act, would still remain, whether the United States were liable, in law, for such damages as the plaintiffs had sustained. There would seem to be no escape from the conclusion that Congress intended that the liability of the government should be determined by the settled principles of law. The only right waived by the government was a defense based upon the Statute of Limitations," and of course the immunity from suit.
Answering a similar suggestion made in the case ofGraham v. State, 109 S.C. 301; 96 S.E., 138, the Court further says:
"It is said that the Act, professedly for the relief of the plaintiffs, would be unavailing, unless it is so construed as to relieve them from the operation of the rule laid down inGibbons v. United States. A satisfactory answer to this suggestion is that, if Congress intended to do more than give the plaintiffs an opportunity, in an action for damages brought in the Court of Claims, to test the question as to the liability of the United States, * * * that intention would have been expressed in language not to be misunderstood. It is as if the plaintiffs asserted before Congress the liability, in law, of the government for the damages they sustained, and Congress permitted them to invoke the jurisdiction of the Court of Claims in order that there might be a judicial determination of the question by that tribunal, with the right of appeal `as in ordinary cases against the United States in said Court.'"
There are several material distinctions between the case at bar and the Graham Case, 109 S.C. 301; 96 S.E., 138, which very greatly weaken the controlling effect of that *Page 58 case: (1) The Graham Case was one of contract, a contract formally entered into between Graham and the authorized agents of the State for the hire of certain convicts. The case at bar is one in tort. (2) The liability of the State for damages on account of the breach of contract in the Graham Case was conceded "for the recovery of such damages, if any, as he may have suffered by the abrogation of his contract;" no question of the propriety of such allowance of damages was left open. In the case at bar the action is authorized "for the recovery of such damages as may be proper, if any;" leaving the question of propriety of such allowance, as well as the amount, for the Court's adjudication. (3) It was distinctly held, in the Graham Case, that a new liability was created by the Act. "The Act was adopted upon the assumption that the contract had been rightfully terminated;" if so, and Graham had the right under the Act to maintain his action, it could only be upon the theory, that that which had been lost to him was restored by the Act. In the former appeal in the case at bar the Court distinctly holds that the Act created no new liability; "the Act does not create a liability which did not exist before its passage." 115 S.C. 182; 104 S.E., 571; 13 A.L.R., 1268.
In Murdock Co. v. Com., 152 Mass. 28; 24 N.E., 854; 8 L.R.A., 399, it was held that an action to recover damages for injuries resulting from the negligence of a servant of the commonwealth in the performance of his duties is not a "claim" within the meaning of a statute which authorizes the maintenance of a suit against the commonwealth to recover "all claims" against it whether at law or in equity. The Court said:
"The Act we are discussing discloses no intention to create against the State a new, and heretofore unrecognized, class of liabilities, but only an intention to provide a judicial tribunal whose well-recognized existing liabilities can be adjudicated." *Page 59
In Clodfelter v. State, 86 N.C. 51; 41 Am. Rep., 440, it was held that a constitutional provision which confers jurisdiction upon the Court "to hear claims against the State" is confined to such claims as are legal and could be enforced if the State, like one of its citizens, were amenable to process; that it does not apply to the case of a convict who, while at work outside the prison, was injured by the negligence of State agents.
In Billings v. State, 27 Wn., 288; 67 Pac., 583, it was held that a State does not consent to become responsible for the misconduct or negligence of its officers or agents, by a provision of its Constitution declaring that "the Legislature shall direct by law in what manner and in what Courts suits may be brought against the State," followed by a statute providing that "any person or corporation having any claim against the State of Washington shall have the right to begin an action against the State in the Superior Court of Thurston County," although the word "claim" was held synonymous with "cause of action." The Court says:
"The State, by consenting to be sued, did not waive the right to defend, upon any legal ground, such actions as any person or corporation having a claim against it might thereafter see fit to `begin' in the Superior Court of Thurston County. In other words, the State has retained all its legal rights as a defendant in an action, and has waived nothing but its former immunity from suits. It has not consented, either expressly or impliedly, to become responsible for the misconduct or negligence of its officers or agents; and, in the absence of a statute making it liable in damages therefor, no such action as the present one can be maintained against the State" — citing Story, Agency, § 319; Gibbonsv. United States, 8 Wall., 274; 19 L.Ed., 453. Clark v.State, 7 Coldw. (Tenn.), 306. State v. Hill, 54 Ala., 67.Langford v. United States, 101 U.S. 341; 25 L.Ed., 1010.
It is noteworthy that the claim in the Billings Case arose subsequently to the passage of the Act. *Page 60
In Green v. State, 73 Cal., 29; 11 Pac., 602; 14 Pac., 610, the plaintiffs sued under a statute expressly authorizing them to institute an action against the State for damages alleged to have been caused to their property by reason of the construction of a canal by the Levee Commissioners of the City of Sacramento. The Court held that the Act of the Legislature authorizing the bringing of the action was not an admission by the State of its liability for the alleged damages, nor a waiver of any legal defense it might have to the action, except its immunity from suit.
As to the second proposition, that it was beyond the constitutional power of the Legislature to create a liability on the part of the State for an Act, direct or imputed, for which it was not liable at the time of its commission; such legislative action being in contravention of Article 10, § 11, and Article 17, § 2, of the Constitution.
Mr. Cooley in his Principles of Constitutional Law says:
"It is not competent by legislation to bring into existence and establish against a party, a demand which previously he was neither legally nor equitably bound to recognize and satisfy."
If it should be held that the Act created a new liability, it must be held that thereby a debt was created in favor of the plaintiff against the State, unascertained in amount, it is true, but none the less a debt an obligation, to which the State must respond when the amount should be ascertained.
Article 10, § 11, of the Constitution, provides:
"To the end that the public debt of South Carolina may not hereafter be increased without the due consideration and free consent of the people of the State, the General Assembly is hereby forbidden to create any further debt or obligation, either by the loan of the credit of the State, by guaranty, indorsement or otherwise, except for the ordinary and current business of the State without first submitting the question" *Page 61 — to the qualified voters at a general election; an impassable obstruction to the conclusion that a new liability was created by the Act of 1918.
Article 17, § 2, of the Constitution provides:
"The General Assembly may direct by law, in what manner claims against the State may be established and adjusted."
This plainly refers to the establishment and adjustment of valid subsisting claims against the State and not to the creation by legislative action of a new liability for an Act for which the State was not liable at the time of its commission. While Article 3, § 30, prohibiting the allowance of extra compensation after service rendered, is not applicable to the present case, it is strongly interpretative of the spirit of the Constitution against the award of a gratuity or the creation of a liability for an Act for which the State was not liable at the time of its commission.
It is held in Chapman v. State, 104 Cal., 690;38 Pac., 457; 43 Am. St. Rep., 158, that under a constitutional provision forbidding the Legislature from making any gift of public money or other thing of value to any person, the Legislature has no power to create a liability against the State for any past Act of negligence upon the part of its officers or agents.
In Clark v. State, 7 Coldw. (Tenn.), 306, it was held that a statute providing that "actions may be instituted against the State under the same rules and regulations that govern actions between private persons," merely creates a new remedy, it does not create a new liability, and does not render the State liable to an action for the negligence or torts of its officers and agents.
It has been suggested that the provisions of the Act of 1918 to the effect that the principles of law applicable to cases brought against any person or corporation shall be applicable to the actions thereby authorized indicate a purpose *Page 62 on the part of the Legislature to waive the State's immunity from liability for the torts of its agents.
In the first place:
"Statutes permitting suits against the State must be strictly construed, being in derogation of its sovereignty." 25 R.C.L., 416.
In the second place: It is uniformly held that the waiver of liability must not be left to inference but expressly declared. See quotations above from State v. Hill,54 Ala., 67. Smith v. State, 227 N.Y., 405; 125 N.E., 841; 13 A.L.R., 1264. Denning v. State, 123 Cal., 316;55 Pac., 1000. United States v. Cumming, 130 U.S. 452;9 Sup. Ct., 583; 32 L.Ed., 1029.
5. The fifth question: Was there error in not holding that the State, in the matter of distributing free antitoxin, occupied the position of a charitable institution, and was not on that account liable either at common law or under the Act of 1918 for the negligence of its agents?
If, as it appears beyond question, the Court now is concluded by the former decision that the Act created no new liability, a position that appears unanswerable both upon reason and authority, as well as by force of res judicata, nothing was waived by the State except its immunity from suit; and both defenses were open to it: (1) That it is not responsible for the tort of its agents, and (2) that the principle of respondeat superior is not applicable to a sovereign, and from motives of public policy should not be extended.
"The doctrine of respondeat superior does not prevail against the sovereign in the necessary employment of public agents." 25 R.C.L., 407. Elmore v. Fields,153 Ala., 345; 45 South., 66; 127 Am., St. Rep., 31. Bourn v.Hart, 93 Cal., 321; 28 Pac., 951; 15 L.R.A., 431; 27 Am. St. Rep., 203. Chapman v. State, 104 Cal., 690;38 Pac., 457; 43 Am. St. Rep., 158. Union Co. v. State,154 Cal., 716; 99 Pac., 183; 24 L.R.A. (N.S.), 1111. *Page 63 State v. Jahraus, 117 La., 286; 41 South., 575; 116 Am. St. Rep., 208. Parlor Co. v. Commonwealth, 157 Mass. 28;24 N.E., 854; 8 L.R.A., 399. Claussen v. Luverne,103 Minn., 491; 115 N.W., 643; 15 L.R.A. (N.S.), 14 Ann. Cas., 673. Lewis v. State, 96 N.Y., 71; 48 Am.Rep., 607. Clodfelter v. State, 86 N.C. 51; 41 Am. Rep., 440. Riddock v. States, 68 Wn., 329; 123 Pac., 450; 42 L.R.A. (N.S.), 251, Ann. Cas., 1913E, 1033.
In Apfelbacher v. State, 160 Wis. 565; 152 N.W., 144, it is said:
"That nonliability for torts arising out of the prosecution of governmental functions is based upon grounds of public policy distinct from the immunity of the sovereign from suit is apparent from the fact that such nonliability is invoked in favor of municipalities, subject to suit by private parties. No doubt such policy may originally have sprung, in a large measure, from the conception that the sovereign can do no wrong, but it has a more modern and tangible basis upon which to rest. The doctrine of respondeatsuperior, while an ancient one in English law, is not one that rests upon direct primary principles of justice. These principles require that the person actually committing the wrong should alone respond in damages. The doctrine rests rather upon secondary principles deduced from primary conceptions of justice. It rests upon the idea that where an enterprise is carried on for the financial benefit of a master it is considered just that he should answer for the tort of his servant in conducting it because he is deemed to profit financially by its being carried on. * * * A denial of the application of the doctrine of respondeat superior to the State when exercising a governmental function does not leave a person injured remediless. He has his cause of action against the person or persons actually committing the wrong. It merely refuses to extend the master's liability to cases where he does not profit by the enterprise he is engaged in, *Page 64 leaving the injured party free to prosecute his suit against the person or persons who actually committed the tort."
"It is true that the rule, universally recognized and enforced that neither a State nor the United States, in the absence of statutory provision, can be made to respond in damages for the torts of its officers or agents is based on the absence of an obligation as well as on the doctrine that the sovereign is immune from suit. But the absence of obligation in such cases rests on the further principle of the common law that the doctrine of respondeat superior there has no application." City of Indianapolis v. IndianapolisWater Co., 185 Ind., 277; 113 N.E., 369.
The immunity of a governmental agency, sovereign or subdivision, from liability for the torts of its agents is as fundamental as the immunity of a State from suit without its consent. Assuming for the sake of argument that the State in this case has waived both its immunity from suit and its immunity from liability for the torts of its agents, the question still remains whether the doctrine of respondeatsuperior shall be extended so as to embrace a tort committed by an agent of the State in carrying out the charitable purpose of the State. That the State in this particular transaction occupied the position of a charitable institution appears too plainly for discussion. The settled policy of this State as declared in two comparatively recent casesLindler v. Hospital, 98 S.C. 25; 81 S.E., 512, andVermillion v. College, 104 S.C. 197; 88 S.E., 649, is that the doctrine of respondeat superior, always within the control of the Court for reasons of public policy, will not be extended to include the liability of such institutions for the torts of its servants. No valid reason can be suggested for not including the State while engaged in similar work of charity within the benefit of that rule.
The defendant's motion for a directed verdict should have been granted.
The judgment of this Court should be that the judgment of the Circuit Court be reversed and that the case be *Page 65 remanded to that Court for judgment in favor of the defendant, under rule 27 (90 S.E. xii).
FRANK B. GARY, Circuit Judge: I concur in the opinion of Mr. Justice Cothran, except in so far as he holds that there was error in not holding that the State, in the matter of distributing free antitoxin occupied the position of a charitable institution and was not on that account liable either at common law or under the Act of 1918, for the negligence of its agents. In my opinion the Acts and conduct of the State in reference to the free distribution of antitoxin are referable to the State under its police power, to promote the health of its citizens, rather than to an intention to assume and occupy the position of a charitable or eleemosynary institution.