Bailey v. Long

• Decision Date: 23 December 1917
• Docket Number: (No. 484.)
• Citation: 175 N.C. 687,94 S.E. 675
• Court: North Carolina Supreme Court
• Parties: BAILEY . v. LONG.

94 S.E. 675

(175 N.C. 687)

BAILEY .

v.LONG.

(No. 484.)

Supreme Court of North Carolina.

Dec. 23, 1917.

Allen, J., dissenting.

Appeal from Superior Court, Burke County; Justice, Judge.

Action by J. W. Bailey against H. P. Long. From a dismissal of the action, plaintiff appeals. New trial ordered.

See, also, 172 N. C. 661, 90 S. E. 809, L. R. A. 1917B, 708.

Avery & Avery, of Elk Park, R. L. Huffman and A. C. Avery, both of Morganton, and D. L. Russell, of Hickory, for appellant.

W. D. Turner, of Statesville, S. J. Ervin, of Morgan-ton, Z. V. Long, of Statesville, and J. F. Spain-hour, of Morganton, for appellee.

PER CURIAM. This action was brought by the plaintiff, to recover damages for (1) loss of the services of his wife, (2) loss of her society, and (3) mental anguish on account of her death, which is alleged to have been caused by the defendant's negligence. At the close of the plaintiff's evidence, the defendant, who introduced none, moved for a nonsuit, which was granted, and plaintiff appealed.

The only question in the case is whether there was any evidence of negligence; the weight and sufficiency of it being for the jury to consider. While the evidence may not be of a very strong or conclusive nature, we cannot say upon a perusal of it that there was literally no evidence which should have been submitted to the jury". The allegation of the plaintiff is that his wife, who was suffering with a broken hip, for her better treatment by a most competent and skillful surgeon, was taken by him to Statesville on August 18, 1913, and placed in the hospital of defendant, who contracted to treat her in a careful and skillful manner as a physician and surgeon, and to furnish her with a suitable room during her stay therein. There is no complaint at all of the surgical treatment, but plaintiff alleges that, when the dislocation of the hip had almost healed under the defendant's skillful treatment, and when she was otherwise in goodhealth and about to be discharged from the hospital, his wife's room, by reason of a defect in the construction of the window sash, was covered with water from a rain and on account of her exposure to the dampness of the room caused thereby she contracted a severe cold, which increased in severity until it developed into pneumonia, which finally caused her death. The evidence tended to show that the deceased was a strong and healthy woman, and had no cough and no trouble with her throat until she caught cold just after the rain. The water was an inch or an inch and a half deep in one corner of the room near her bed, and if the floor had been level it would have been the same depth all over. It required some time to remove it, and the floor was damp afterwards. After plaintiff had bored holes in the outside sash, and let out the water between the sashes, he was asked to fix the window in another room in the same condition, which he did. The plaintiff testified as> to the condition of the window:

"Right soon there came a nurse: I don't know who it was. I said: 'Here, stop here a minute; look here at this water.' I suppose it was Dr. Long's nurse; she had on a cap and was dressed like all the rest. I wasn't very well acquainted with them. She turned right back, as quick as she could, and brought Miss Davidson, the head nurse, and two buckets and two cloths, or something, and went to wiping up the water and wringing it out in those buckets; they kept at that, just as busy as they could be; it was still raining. I said: 'Miss Davidson, it looks like you are not getting it out any faster than it's coming in.' She said: 'It doesn't look so. I must see a carpenter to-morrow and get that fixed.' I said: 'I have to leave here on No. 35, and I'd like to see that fixed before I leave.' I said: 'I'm a carpenter; how about my examining it, and see if I can find the trouble?" She said: 'Go ahead.' I raised the window, and the rain came blowing right through. I found a deep puddle on the window. I have a model of that window. (Model is produced. Witness explains model to the jury.) It was a double window. The water was running over the inside of the window. The sash had been pieced; the front piece had been pieced; it seemed the sash had been made too short. I told Miss Davidson, if they would get me some tools. I thought I could fix it. She came with a box of tools, and I looked for a chisel and couldn't find it, and I took a large screwdriver and hammer, and drove it up here (indicating on model), and tried to move it, to make a leak, and couldn't do it; it was very tight. I picked up a brace and bit and bored two holes, and the water ran out. I let the sash down, and there wasn't any more trouble. They wiped the floor up until it was as dry as they could get it with a cloth. Miss Davidson was gone out about ten minutes, and she said: 'I wish you would come and fix another in one of the rooms.' I took the bit and fixed the other; I couldn't tell you the number of that room; it might have been the second room from where my wife was."

He stated that the rain occurred on September 10, 1913. He then testified:

"I went back on Sunday, the 14th, and she had a very deep cold and cough—bad cough. I think that was the 14th—it was Sunday. The room was dry on that occasion; it was a nice sunshiny day. I guess I must have went back the next Wednesday, far as I know. She had a very bad cold then. I went over, and met the doctor near his office door, and talked to him. I said: 'My wife's hip is doing nicely.' He said: 'Yes.' I said: 'She has a very deep cold, and a mighty bad cough.' I said: 'I come over here to see if you wouldn't give her something for her cough; it hurts her hip so bad when she coughs.' She said to tell Dr. Long so, and I did tell him. I didn't tell him anything she said about how she contracted the cold. He looked at me straight a little bit and said: 'Never you mind, Mr. Bailey; we'll give her the attention she needs without your looking after it at all.' He opened the door and went in the office and shut the door, and I went back to her bed. He said: 'I don't believe in medicine, anyway.'"

This witness further stated that they returned to his home on September 25, 1913; that her cough continued, and her physical condition was bad, until he called in a physician, Dr. Flowers, on Monday, November 16, 1913, who examined his wife, and witness then further testified:

"The doctor said: 'How long have you been this way?' Answer: 'She had been that way ever since September 10, 1913. Dr. Blowers treated her Monday, Wednesday, and Friday, and on Saturday she died—the 15th of November. The doctor went there on Monday before the 15th. The 15th was Saturday; I recollect that part. The doctor was called in on Monday before Saturday, and he was there on Wednesday and on Friday; three trips is all he made. From the time I took my wife home on the 25th of September until her death on the 15th of November she was coughing all the time, snuffing and working with her, nose; spitting up phlegm. She didn't sleep good; slept maybe an hour or two, and would wake up coughing. I waited on her at night altogether, and she suffered. She showed her suffering by coughing, spitting, and complaining of her breast hurting her; never complained of her breast until about a week before Dr. Flowers was there. * * » After my wife got home, she never complained of her breast until somewhere near a week before she died. I don't remember exactly. I didn't say she didn't complain of her chest until about the time I sent for Dr. Flowers; she had it before that, something in the neighborhood of a week; might have been five or six days, before the doctor came. Up to that time she had a cough, but had no pain in her chest. She hadn't always had that cough. She didn't have trouble with her throat. She was never sick a day in the whole four years we lived together. She never had a catarrh of the throat; stood a good examination for insurance. * * * I did everything for my wife's cold after she came back that I knew to do; gave her teas and other things. She would cough and snuffle, and sometimes take her finger and pull phlegm out of her mouth; get it out with her handkerchief. She did that from the time she came back from the hospital until she died. She was that way when I went after her. When she got so much weaker, I went after Dr. Flowers. I saw that she was staying one way all the time. She told me she was worse in the morning. Dr. Flowers was from Granite Falls; the nearest doctor I could get.' "

Susie Parker, one of the nurses, testified:

"I live in Statesville, and I worked in Dr. Long's hospital during the time Mr. J. W. Bailey's wife was there; all the time she was there. She was in room No. 14. I don't know how many occasions I have seen water in there, but one time an awful hard rain came and blew in pretty heavy. ...