Tbis ease was before the Court at the Spring Term, 1940, and is reported as Simpson v. Oil Co., 217 N. C., 542. A new trial was granted because of error in the instructions to the jury involving the possibility of a double recovery on both theories presented in the pleadings — negligence and breach of warranty. The only important difference between that case and the one at bar is that in the second trial the questions of negligence and implied warranty were eliminated altogether and the case went to the jury solely upon the express warranty printed upon the sealed package in which the commodity was purchased.
The question most seriously urged upon us here — that of nonsuit upon the evidence — was decided upon the same state of facts upon the first appeal. The evidence in the trial now under review is substantially the same as that of the former trial — careful comparison fails to disclose any distinction or difference helpful to the defendant.
The Court passed upon the matter in the former appeal adversely to the defendant, and the decision stands as the law of the case. Harrington v. Rawls, 136 N. C., 65, 48 S. E., 571; Johnson v. Ins. Co., ante, 202; Fisher v. Fisher, 218 N. C., 42.
Exceptions were taken to the admission in evidence of tests made by Dr. Bolus — -a skin specialist — on a group of five nurses and interns at State’s Prison, and on the plaintiff. It is pointed out that these tests were made under conditions differing greatly from those under which the plaintiff came in contact with the spray, with alleged disastrous consequences. But the objection seems to be based on a misunderstanding of the nature and purpose of the test. It was not made to demonstrate experimentally whether Mrs. Simpson could have sustained the serious injury she complains of by coming in contact with Amox in the manner she describes — which seems to have been the purpose of the experiment performed by Dr. Carpenter. The purpose was to ascertain whether Amox had noxious qualities that were poisonous to humans. The test was pronounced by defendant’s expert witness to be an approved test. It was also made on plaintiff in a precisely similar manner, and comparisons noted. Of the propriety of the test and its admission in evidence, we have no doubt. Its weight and significance upon the point at issue weré matters which might well have been argued to the jury.
A photograph was exhibited in explanation of the testimony regarding the physical condition and appearance of the plaintiff. We cannot see that the rules of evidence were violated or the function of this aid to testimony abused. The incident brought under review goes no further than a preliminary identification of the photograph and testimony as to its correctness as a true representation of the condition of plaintiff’s body at the time of the treatment. The record does not show that the photograph was shown to the jury at the time. This preliminary authentica*600tion was necessary to authorize even its limited use. S. v. Matthews, 191 N. C., 378, 131 S. E., 743; Hampton v. R. R., 120 N. C., 534, 27 S. E., 96; Alberti v. New York L. E. & W. R. Co., 118 N. Y., 77, 23 N. E., 35. The thin line between the substantive and auxiliary function of photographs in this connection which this Court seems still, on occasion, to regard, was not violated. Later, upon further identification, it was used to illustrate the testimony, the trial judge limiting it to that purpose. Kelly v. Granite Co., 200 N. C., 326, 156 S. E., 517; Hoyle v. Hickory, 167 N. C., 619, 83 S. E., 738; Davis v. R. R., 136 N. C., 115, 48 S. E., 591; Lupton v. Express Co., 169 N. C., 671, 86 S. E., 614; Eaker v. Shoe Co., 199 N. C., 379, 154 S. E., 667.
Dr. Carpenter, expert witness for defendant, was asked on redirect examination: “Is or is not Mrs. Simpson the only person that you know of that is allergic to Amox, if she is allergic to it?” This was ruled out and defendant excepted. The record does not disclose what the witness would have said, if permitted. But it was also incompetent for another reason: There is no evidence, except that contained in the test made by the witness, as to the extent of the doctor’s experience with persons who have been in contact with Amox. We have the numerator but no denominator. It affords no evidence of the degree of prevalence or rarity of the condition of allergy with reference to Amox.
During the trial the plaintiff collapsed while giving her testimony, necessitating an adjournment and recess of the court. The defendant moved for a mistrial, based upon this incident and the possibility that it might have aroused the sympathy of the jury. The request was declined, and the trial proceeded. There was nothing to indicate bad faith on the part of the plaintiff, or fraudulent imposition on the court. The collapse was consistent with what witnesses, and the plaintiff herself, had said about her condition. Granting or refusing the motion, upon the facts presented, was well within the discretion of the trial judge, and we do not find that he abused that discretion. In re Hinton, 180 N. C., 206, 104 S. E., 341; S. v. Tyson, 133 N. C., 692, 45 S. E., 838; Gregory v. Perry, 126 Me., 99, 136 A., 354; Graves v. Rivers, 3 Ga. App., 510; Edwards v. Metropolitan Street Railway Co., 143 Miss. App., 371, 127 S. W., 605; Hudson v. Devlin, 28 Ga. App., 458, 111 S. E., 693; Hunt v. Van, 61 Mont., 395, 202 P., 513.
At the conclusion of the evidence the defendant asked the court to compel the plaintiff to elect between negligence and breach of warranty as ground of recovery; and in a second request demanded an election between express warranty and implied warranty. The judge declined both motions and announced that he would submit the case to the jury only upon the “breach of warranty, as will be shown by the issues and the charge of the Court.”
Simpson v. Oil Co., supra, did not foreclose the plaintiff from pro*601ceeding either upon the warranty or for the negligence. It was based upon the principle that upon the issues framed the plaintiff might have made a double recovery for the same injury. It is not necessary for us to decide here whether two causes of action — one in negligence and one upon the warranty — are so incompatible as to require an election. It may be that there are circumstances in which it would be more important to ascertain whether a real wrong and injury were inflicted upon the plaintiff than it would be to assign a technical name to the fault in the transaction. But it is certain that the implications of negligence and those of warranty ordinarily are so different that negligence cases dealing with proximate cause are misleading as applied to warranty, and the analogy between the consequences of negligence and the consequences of a breach of contract may not be pushed too far.
It may be inferred from the decision in Simpson v. Oil Co., supra, that the matter printed upon the package of Amox constituted an express warranty to the ultimate user that the Amox used, in the manner directed, was harmless to human beings, and of such other conditions as were within reasonable interpretation of the language employed; and that one suffering injury by reason of a breach of such warranty might recover damages. And that the warranty was still effectual, although the product was bought from a middleman. That question, therefore, is no longer open.
The case appears to have been tried with a strict regard to the decision in this case on the former appeal; but in the second trial, from which the present appeal arose, all questions as to negligence or as to implied contract were eliminated from the case — negligence by direct ruling of the judge and the submission of an issue on warranty only, and implied warranty by confining the consideration of the jury to the warranty written upon the package. The defendant is, therefore, unable to gain any advantage by injecting either subject into the discussion. If there had been a danger, which the record does not indicate, that the jury might have taken into consideration an implied warranty, the defendant might have made it the subject of a precautionary prayer for instructions to the jury in that respect. Ve doubt, however, that under the evidence the court would have been justified in giving any instruction on the point.
The exceptions were ably and forcefully argued, but we do not find in them sufficient cause for disturbing the result of the trial.
We find
No error.
Stacy, C. J., and Winbobne, J., dissent.
Bae.NHIll, J., not sitting.