January 14, 1924.
Petition for rehearing dismissed February 14, 1924.
The opinion of the Court was delivered by The respondents, in their argument on appeal, state in part:
"This is a suit by Madeline Williams, by guardian adlitem, E.H. Williams, against Standard Oil Company, for injuries received by her as the result of what the plaintiff claimed to be an explosion of a lamp. Joined with the Standard Oil Company as defendants were A.J. Amick, the agent at Batesburg, and E.M. Givens, the driver of a wagon of defendant which delivered oil.
"The allegations of negligence as charged in the complaint were:
"First, that the defendant sent out a tank loaded with the established law of the land to punish a man for the comfendant, *Page 433 knowing the danger of mixing gasoline and kerosene, nevertheless, sent out gasoline and kerosene in the same tank and sold them from the same wagon to its various customers.
"Second, that on the 11th of February, 1921, Givens, the agent of the Standard Oil Company, sold some gasoline to Thomas Quattlebaum and went from there directly to the place of business of W.W. Hall and drew out some kerosene in the same container in which he had just drawn the gasoline, thus making a highly explosive and dangerous product instead of selling pure kerosene which the law required them to sell.
"Third, that the mixture which was sold by Hall to S. D. Derrick through his agent was not pure kerosene oil, but that said oil had been allowed to become mixed with gasoline or some other high explosive so that the same was no longer safe to use and when used in the ordinary and accustomed way exploded and burned the plaintiff.
"The proof of the plaintiff's case, briefly stated, was that on 11th of February, 1921, S.D. Derrick sent Ben Williams to the store of W.W. Hall to purchase one gallon of kerosene for use in his home. This kerosene was put in an ordinary type kerosene can and carried by Williams to the home of S.D. Derrick. The oil from this can was used in the lamps at the Derrick home from the 11th of February until the night of the 18th of February. On that night a glass lamp having become empty, Mrs. Derrick took it up and refilled it from the same oil can. After supper Mrs. Derrick was sitting in front of the fireplace mending shoes with the lamp on the floor at her right hand and the child Madeline Williams was playing on the floor. Magdalene Rowland, a young girl, the only other occupant of the room, was standing at the fireplace. The testimony is conflicting as to what fire there was in the fireplace, but there was some fire burning there. *Page 434
"In an adjoining room in the same house quite a number of persons were gathered, including Mrs. Derrick's husband, S.D. Derrick, and other relatives and friends.
"Magdalene Rowland's account of what happened was that Mrs. Derrick was sitting with her feet on the hearth. The lamp was on her right side between her and the fire which at that time was nothing but a lightwood knot flickering up and down. She was fixing shoes and she picked up the lamp `to do what she was going to do' and `it bursted and flew all over her."
"Other witnesses who were present in the home testified as to the events after the burning and as to the suffering of the injured.
"The contention of the defendants was that the proof did not show that the lamp had exploded and that if it did explode such explosion was due to the fact that the lamp had no chimney and the wick was too small and this negligent use of the lamp, coupled with the fact that it was sitting in front of the fire, which would tend to heat the oil, had caused whatever trouble occurred."
The judgment was for the defendant, and the plaintiff appealed. There are 12 exceptions, but not so many questions.
I. Dr. Vilbrandt, an expert witness for the plaintiff, testified that while the flash test was above 100 degrees F., as required by the South Carolina statute, still there were substances in the oil that made it unsafe for use. The defendant objected to the testimony on the ground that the statutes of this state had fixed the standard of safety at 100 degrees F. and when the oil complained of showed a flash over 100 degrees F. they had fully complied with the law fixing a standard of safety, and that evidence to the contrary was inadmissible. The trial Judge excluded the testimony and charged the jury that, if the oil in question had a flash of more than 100 degrees, it had complied with the law and was not responsible for an explosion. *Page 435 The Statute (Civ. Code, 1922) relied upon (taken from appellant's argument) is as follows:
"Sec. 2. The following standards shall be enforced under the provisions of the act: (a) The flash test of illuminating oils shall be not less than 100 degrees Fahrenheit, as tested by the Elliott method closed cup — according to directions prepared by the commissioner of agriculture, commerce and industries. (b) All illuminating oils shall show not more than six per cent. by weight of residue remaining undistilled at 570 degrees Fahrenheit. (c) Photometic tests of illuminating oils must show a steady flame of good quality and good illuminating power."
That statute refers to three points only, and leaves other qualities and other defects where they were before. To illustrate: A statute that fixes a speed limit for automobiles on a public highway does not allow an automobilist to negligently or willfully run down a pedestrian, or injure another, provided he does not exceed the speed limit. The testimony was competent and it was error to strike it out. The charge that made the flash test the sole test was error.
II. Dr. A.C. Summers, a witness for the defendant, who was in charge of the state laboratory under the department of agriculture, was examined as to an analysis of the oil in question. The plaintiff undertook to show, on the cross-examination, that the department had made another analysis that was erroneous. The effort was to show that the department had declared another sample of oil free from gasoline, that did contain gasoline. The question is: Can a party show that an expert witness put up by the other side has made mistakes in other cases of the same sort?
We have not been cited to any authority from this state, directly on the subject. The authorities in other jurisdictions are conflicting. We must, therefore, follow those authorities that are more in accord with the general principles of law. The evidence is allowed in 11 Ruling Case *Page 436 Law, 646, and Hoag v. Wright, 174 N.Y., 36;66 N.E., 579; 63 L.R.A., 163.
If it be true that the expert is a blunderer, then his testimony is of little or no value. It is manifest that it may be a matter of supreme importance to show the accuracy of the expert. To illustrate: A man is on trial for murder, by poisoning. An expert is put on the stand who testifies that he had analyzed the stomach of the deceased, and found strychnine. The sole question in the case may be: Did the stomach contain strychnine? There is only one stomach to be examined, and that in the possession of the prosecution. The defendant is shut up to an impeachment of that expert witness. A chemist's life is often in his laboratory, and probably he has no reputation, either good or bad. The only way then is to show his inaccuracy, and the only way to show that is to show that he has made mistakes, it may be time and again. It is true that in collateral matters the witness cannot be contradicted, but the accuracy of his analysis may be the only issue in the case, and is not collateral. A. testifies that he saw B. shoot C. The shooting was across the street. It would work a great hardship if the defendant could not show that A. did not know B. at all, or could not recognize him across the street. The best and most conclusive way to show it is by showing that A. undertook to identify B. and failed to do it. The effectiveness is beyond question. The only question is: Is there a rule of law that works this great injustice? The answer, is: There is no such rule in this state.
III. The presiding Judge charged the jury that the plaintiff in this case could not rely on a breach of warranty. In so holding, he was correct. This was an action sounding in tort and not in contract.
The judgment is reversed and a new trial ordered.
MR. CHIEF JUSTICE GARY and MR. JUSTICE WATTS concur. *Page 437
MR. JUSTICE MARION concurs in result.
MR. JUSTICE COTHRAN dissents.