Grier v. Phillips

• Decision Date: 12 October 1949
• Docket Number: 95
• Parties: GRIER v. PHILLIPS.
• Court: North Carolina Supreme Court

55 S.E.2d 485

230 N.C. 672

GRIER v. PHILLIPS.

No. 95

Supreme Court of North Carolina

October 12, 1949

Civil action to recover (1) for alleged wrongful death, and (2) for pain and suffering sustained by intestate of plaintiff between date of the alleged wrong, and date of her death.

Plaintiff alleges in her complaint as a first cause of action:

That on morning of August 18, 1947, her intestate went to the house and office of Dr. W. H. Phillips, a dentist duly licensed and practicing his profession, in Wilson, North Carolina, for the purpose of having a tooth extracted; that Dr. Phillips was not there, but his wife, the defendant, who is not a dentist nor trained and educated in dental science, licensed and qualified to practice dentistry in the State of North Carolina, or elsewhere, was in his office; that at invitation and request of defendant, intestate occupied the dentist's chair in the office for the purpose of allowing defendant to pull her tooth; that intestate did not then know what defendant was about to do, and was ignorant of the danger, and trusted defendant to do her no harm; that while intestate was in said dentist's chair, defendant wrongfully, willfully, and negligently proceeded to pull all the teeth of intestate, notwithstanding the fact that the condition of her mouth, gums and general physical condition at the time showed that such an act was hazardous to her life and well-being; that defendant, in pulling the said teeth willfully violated her duty to intestate and was negligent in that the proper methods and safeguards for the health protection, and well-being of intestate were not used; that defendant knew or should have known (1) that she was not qualified or competent to act as a dentist, and (2) that the pulling of the teeth of intestate would be dangerous to intestate's life; and that immediately after her teeth were pulled, and as a result thereof the intestate became seriously ill and died August 28, 1947, of an infection proximately caused by and resulting from the said wrongful conduct of defendant to the great damage of plaintiff.

And for a second cause of action, plaintiff reiterates the allegations of the first cause of action, and alleges that on August 18, 1947, immediately after defendant had pulled the teeth of intestate, she became seriously ill and all during the ten days of her illness immediately preceding her death, she suffered intense and severe physical pain resulting from and proximately caused by defendant's wrongful conduct, to her damage, etc.

Defedant, answering the allegations of the complaint, admits (1) that she is not a dentist and is not licensed to practice dentistry in the State of North Carolina or elsewhere; and (2) that on or about August 18, 1947 plaintiff's intestate came to the office of Dr. W. H. Phillips for the purpose of having three teeth pulled; that defendant at request of plaintiff's intestate caused her to be seated in a dental chair and she, the defendant, examined the mouth and teeth of the plaintiff's intestate, and found that the three teeth remaining in the intestate's mouth were loose and easy of extraction, and were of no service to intestate; and that defendant complied with the request and importunity of intestate and pulled the said three teeth. Defendant denied in material aspect other allegations of the two causes of action set forth in the complaint.

Plaintiff offered on the trial in Superior Court the above admissions of defendant and the testimony of six witnesses, which may be summarized as follows:

(1)L. W. Morris, of Wilson, North Carolina, by whom Missouri Gilmore, plaintiff's intestate, had been employed for twenty years, testified: That after an absence of a few weeks she came to him Monday morning, August 18, 1947, to get $3 to have three teeth pulled; that at that time 'she was thinner and weaker' than he had ever seen her; that about an hour later she came back for $2,--saying it would take that much more; that she told him she had only three teeth, and, as he thinks, they were located in the front upper gums; that he next saw her Tuesday night; that at that time she couldn't eat anything, her gums were so sore; that he next saw her in her room on Thursday; and that she could not speak, but he observed nothing to indicate she was suffering pain.

(2)Julia Barefoot, at whose home Missouri Gilmore had had a room for three years, testified: That on the morning Missouri Gilmore had her teeth pulled, she, the witness, saw her going and waved her hand to her, but she had her hand over her mouth and said nothing; that, after her teeth were pulled, she saw her at home the same day; that she was sick; that her mouth looked raw 'where they had pulled out her teeth'; that she didn't look right,---looked like she was going crazy---describing her actions; that she did not go to bed all night,--- but sat on a trunk by her door in her room,---and was in pain---groaning; that she stayed in bed the third night; that other than her mouth being swollen witness noticed nothing unusual about her; and that while she said she was 63 years old, 'she was a heap older than me, and I am 65'.

(3)Frances Grier, administratrix of the estate of Missouri Gilmore, plaintiff in the action, testified: That Missouri Gilmore was her great-aunt; that she, the witness, lives in Raleigh; that when she saw her aunt on the 26th of August, she smelled an odor at her mouth when close to her; that on the morning of 27th she was weak and could not eat or drink anything; that she, the witness, called Dr. Barnes, and saw him examine her mouth; that 'both gums, up and down, looked like it had been plowed up',---her gums were 'like dark blood', and bad odors came from her mouth; that her aunt had eight or nine old snags,---three solid teeth,---the rest kind of snags.

(4)Dr. Boise Barnes, a medical expert, testified: 'I knew Missouri Gilmore * * * I had occasion to see her in August 1947. The first time I saw her was on August 22nd, at her room where she was living * * * she was in what we call a semicose condition * * * unable to speak * * * just looking off in space * * * I just looked in the mouth and the gums were swollen and the mouth inflamed and the odor was of the character of a Vincent's infection, that is, the same as trench mouth * * * I felt that she should be put in a hospital since she could not take anything by mouth. The next day when I called I was unable to see her as the front door of the house was locked and I didn't see her until 2 or 3 days * * * I went again through the back and saw her then. She was in a weaker condition. Her mouth was generally inflamed. I suggested that they put her in the hospital. I think that was the 27th and she was brought to the hospital. I didn't notice that she was in pain. She didn't react, didn't respond. I had to use a spoon to get her mouth open and she did not respond at that time, did not make any sound. She was unable to take anything by mouth. She was in a general toxic condition of the body. Also, the gums could have interfered as her inability to take nourishment caused the body perhaps to fail to eliminate certain poisons the body accumulated. I found infection. The gums were swollen, and were red, and there were some patches there, white patches, suggestive as the odor was too, of Vincent's disease and I made that diagnosis * * * I later confirmed that I was right in the first place. I would say that I saw the usual amount of infection. From my observation and treatment of her on August 22nd, I have no opinion satisfactory to myself as to whether or not that infection was present on August 18, 1947. As to that, I am unable to say. I have no opinion satisfactory to myself whether it is characteristic of Vincent's disease to develop and become present to the infection stage in 4 days' time * * * In my opinion, the cause of her death was a chronic condition of the kidneys, uremia, and that with Vincent's infection would be my diagnosis. I signed the death certificate reading 'Death due to Adv. nephritis--Vincent infection of throat and gums'.'

The doctor continued on cross-examination: 'When I said that I found her in a semicose condition that means she was unconscious which might have been from the kidneys or any other cause. That condition is symptomatic of uremia. The diagnosis I gave was the immediate cause of death. The urethra failure, failure of the function of the kidneys is the cause of uremia. I also stated that the uremia was induced by chronic nephritis, inflammation of the kidneys, that is a pre-existing or recurring of nephritis this disease of the kidneys. This uremia was induced by a condition of the kidneys for some time and grew worse * * * I said I had no opinion as to whether or not she would have died as quickly whether her teeth were extracted or not. ' Then, on re-direct-examination, Dr. Barnes said: 'I am stating that the condition of her kidneys accelerated her death. ' Then on re-cross-examination, he continued: 'She was an old woman and in a weakened condition * * * Sh...