Freeze v. Congleton

• Decision Date: 06 January 1970
• Docket Number: No. 49,49
• Citation: 171 S.E.2d 424,276 N.C. 178
• Court: North Carolina Supreme Court
• Parties: Maurice Dean FREEZE, by his Next Friend, John D. Freeze, Jr. v. Betty J. CONGLETON.

Page 424

171 S.E.2d 424

276 N.C. 178

Maurice Dean FREEZE, by his Next Friend, John D. Freeze, Jr. v. Betty J. CONGLETON.

No. 49.

Supreme Court of North Carolina.

Jan. 6, 1970.

Hartsell, Hartsell & Mills, by K. Michael Koontz, Boyd C. Campbell, Jr., Concord, for the plaintiff.

Williams, Willeford & Boger, by John Hugh Williams, Concord, for the defendant.

HIGGINS, Justice.

The plaintiff, Maurice Dean Freeze, age 5 years, by his next friend, instituted this civil action against Betty J. Congleton to recover damages for injuries he sustained when he 'walked or ran' into a clear, unmarked glass door between the living room and the porch of the Congleton home. The accident occurred about 2:30 in the afternoon of October 8, 1967 while the minor plaintiff, his father, his mother, and his older brother were guests of the Congletons in Raleigh. The infant plaintiff's mother and the defendant, Mrs. Congleton, are sisters.

The plaintiff alleged:

'That at all times herein alleged the defendant, Betty J. Congleton and her husband, Albert B. Congleton, were the owners of a certain house and lot located at 4400 Drexel Drive, in the City of Raleigh, Wake County, North Carolina.'

The complaint further alleged:

'That the injuries to the plaintiff were due, caused and occasioned by and followed as the sole, direct and proximate result of the negligence of the defendant, Betty J. Congleton, in that:

(a) She did, with full knowledge of the plaintiff's age and lack of appreciation of danger, close said sliding glass door and block the doorway through which the minor plaintiff had entered the defendant's residence and did while sitting next to said door fail to warn the minor plaintiff as he approached said door that she had blocked same with an invisible glass.

(b) She did, although other children on previous occasions had walked and run into said sliding glass door, fail to mark said door in any way or manner whatsoever or warn the plaintiff and other young children of the presence and danger of said invisible glass door.'

Dr. Altany, a plastic surgeon, testified by letter: 'Due to the nature and extent of these residual scars, the patient will always have permanent evidence of facial scarring of the left cheek and left lower lip.' The plaintiff's only other witness was his mother, Mrs. Frances Freeze. She testified:

'On Sunday, October 8, 1967, I was at my sister's home in Raleigh, North Carolina, together with my sons, Maurice and John, and my husband. We spent Saturday night. Sunday was a mild, sunny day. A little after 2:30 p.m. Maurice was involved in an accident at my sister's home. I was in the den when the accident occurred together with my husband, my sister Betty, her husband A.B., and their son Butch.

Immediately prior to the accident, Maurice was in the back yard playing with the other children. The sliding glass doors were open at the time and had been open all afternoon. Maurice had been in and out the door four or five times earlier in the afternoon and each time the door was open.

A little after 2:30 p.m., Maurice came through the screen door onto the back porch which is just outside the sliding glass doors. He then came through the porch, the opening to the den and through the den to go to the bathroom. While Maurice was in the bathroom, my sister who was sitting beside the door reached behind her and pushed the sliding glass door shut. At the time my sister closed the door, there were no markings on it and nothing in front of the door. Maurice came back into the den. When I last saw him, he was walking toward the sliding glass door and approximately five feet from it. At that time a cat jumped in my lap and I looked down at the cat. I then heard a crash and looked up and saw the broken glass. My sister, seated directly beside the door, did not say or do anything as Maurice approached the door, and when Maurice went through the door my sister was seated about one foot from where he went through. There was nothing over this opening that you could see as Maurice walked toward it. It was clear, clean glass.'

The plaintiff alleged that the defendant and her husband were the owners of the house and had lived there for five or six years. The witness, her husband and children, including the one injured, had been guests in the home 'once or twice a year. During this time, the only change in the construction of the house was that the back porch was screened in.'

The allegation that the husband and wife were the owners of the home necessarily implies that as husband and wife they had title to it. A title conveying real estate to a husband and his wife, nothing else appearing, creates an estate by the entireties. Nesbitt v. Fairview Farms, 239 N.C. 481, 80 S.E.2d 472; Davis v. Bass, 188 N.C. 200, 124 S.E. 566; Morton v. Blades Lumber Co., 154 N.C. 278, 70 S.E. 467. '* * * (W)here an estate by the entirety exists the husband, during the coverture, is entitled to the full control * * * of the land to the exclusion of (his) wife.' Williams v. Williams, ...