Green v. Biggs

• Citation: 83 S.E. 553,167 N.C. 417
• Decision Date: 25 November 1914
• Docket Number: 338.
• Parties: GREEN v. BIGGS.
• Court: United States State Supreme Court of North Carolina

83 S.E. 553

167 N.C. 417

GREEN v. BIGGS.

No. 338.

Supreme Court of North Carolina

November 25, 1914

Appeal from Superior Court, Alamance County; Lyon, Judge.

Action by Mrs. Emma V. Green, administratrix, against A. C. Biggs. From a judgment for plaintiff, defendant appeals. Affirmed.

Where plaintiff did not object to evidence on the ground of variance, but adopted the theory that such evidence, while admissible, was shown to be false by the complaint, defendant cannot thereafter complain that the issue should not have been submitted to the jury.

This is an action to recover damages for the wrongful death of the plaintiff's intestate, caused, as alleged, by the negligence of the defendant, who is the proprietor of a private sanatorium.

The allegations of negligence in the complaint are as follows:

"Second. That plaintiff's intestate, who was her husband, came to his death by the wrongful act, neglect, and default of the defendant on the ______ day of March, 1909, under the following circumstances, to wit: The intestate on the ______ day of February, 1909, placed himself under the care and treatment of the defendant, who held himself out and advertised to the public as an expert physician and doctor at his sanatorium in the town of Greensboro, Guilford county and state of North Carolina. That the defendant, on the ______ day of February, 1909, received the said J. W Green, plaintiff's intestate, into his care, custody and control in his said sanatorium, in Greensboro, Guilford county and state of North Carolina, and placed him in an upper room in the building used and occupied by the defendant as a sanatorium, and treated him from day to day for the disease with which the said J. W. Green, plaintiff's intestate, was afflicted until the ______ day of March, 1909, and, the defendant was paid for all of the services rendered and was paid $30 in advance for each week's service. The last payment of $30 was paid either on the 9th or 10th day of March, 1909. That plaintiff's intestate was an invalid and unable to wait upon and attend to his personal wants and necessities, and was placed by the defendant in a room upstairs, as aforesaid, and with no one in the room as nurse, attendant, or otherwise. That some time during the night of March 10, 1909, the building in which the defendant carried on his business as a sanatorium, and in which plaintiff's intestate was placed, was burned and destroyed, and plaintiff's intestate was burned to death therein. That the building was heated, as plaintiff is informed and believes and so alleges, on the night of the fire, and before the night for a long time, by fire kept in a furnace in the basement of the building, and the fire was kept burning day and night in order to keep a certain temperature in said building. That this furnace was attended to by a man employed by the defendant, and, on the night the plaintiff's intestate was killed by the burning of said building, the defendant expressly permitted the fireman to leave his place of business and his duties there in attending to the furnace and go entirely off the premises of the said sanatorium. That at the time of the fire and on that night there was no one in or about the said building, except some ladies and children and the plaintiff's intestate. That the fireman's duty was to keep the furnace fires up and act as a watchman to the safety of said sanatorium premises. That the fire, which destroyed said sanatorium and burned to death plaintiff's intestate, started as plaintiff is informed and believes and so alleges, at or near the said furnace, and there being no one there at the time to give the necessary alarm or to extinguish the flames the wooden building burned rapidly, and plaintiff's intestate was burned to death as aforesaid.

Third. That it was gross negligence on the part of the defendant to place the intestate of the plaintiff, a helpless and invalid man, in an upstairs room, in a wooden building, with a furnace underneath thereof, with fire burning therein sufficient to warm a two-story building, with no person to look after it and attend to the said furnace, and with no suitable person or nurse to remove the plaintiff's intestate. That the building was a two-story building, with a basement underneath, where the furnace was located, and the building had ten or more rooms in it. That the windows of the room in which plaintiff's intestate was placed by the defendant, as plaintiff is informed and believes and so alleges, was so fixed by screens or other appliances that plaintiff's intestate, in his feeble condition, could not open said screens or appliances and escape the flames and the door in the room in which plaintiff's intestate had been placed by defendant opened, as plaintiff is informed and believes and so alleges, into the hallway of the house, and there was no chance of escape that way for one in the feeble condition such as plaintiff's intestate, unless assisted by either nurse or attendant in time. This plaintiff, therefore, alleges that her intestate came to the horrible death of being burned to death by the negligence, wrongful act, and default of the defendant to plaintiff's damage $10,000."

The defendant demurred to the complaint ore tenus upon the ground that it did not state a cause of action. The demurrer was overruled, and the defendant excepted. The defendant failed to answer, and judgment by default and...