Smith v. Wharton

• Decision Date: 02 July 1930
• Docket Number: 363.
• Parties: SMITH v. WHARTON.
• Court: North Carolina Supreme Court

154 S.E. 12

199 N.C. 246

SMITH v. WHARTON.

No. 363.

Supreme Court of North Carolina

July 2, 1930

Appeal from Superior Court, Rockingham County; MacRae, Special Judge.

Action by O. E. Smith, administrator of Nonnie Smith, against C. R Wharton. From a judgment dismissing the action, plaintiff appeals.

Affirmed.

This is an action to recover damages for the death of plaintiff's intestate, caused, as alleged in the complaint, by the negligence of the defendant, a physician and surgeon, who, at the request of the plaintiff, had performed an operation on said intestate about one hour before her death.

Plaintiff's intestate, Nonnie Smith, was his wife. She died on May, 30 1928, at plaintiff's home in Rockingham county. At the date of her death she was eighteen years of age. For several months prior to her death she was pregnant with her first child. She had been under the professional care of the defendant, who was engaged in the practice of medicine in Rockingham county, since February 16, 1928. She was expecting to be confined during the month of June.

Examinations made by defendant from time to time, at his office, prior to May 29, 1928, disclosed that she was in good physical condition, despite the fact that her feet and legs had begun to swell. On May 29, 1928, an examination made by defendant at his office showed that her kidneys were in bad condition. Defendant advised plaintiff that her kidneys were poisoned and that an immediate operation was advisable for the purpose of delivering the child. After some discussion between plaintiff and defendant as to whether the operation should be performed in a hospital or at plaintiff's home, upon defendant's advice that the operation was simple, and that he could perform it, with the assistance of another physician, at plaintiff's home, it was decided that the operation should be performed the next day at plaintiff's home.

At about 9 o'clock on the morning of the 30th of May, 1928 defendant went to the home of plaintiff. Upon being advised that his patient had taken salts the night before, as he had prescribed, that she had taken nothing except a cup of coffee and a glass of milk for breakfast, and that she was feeling all right, defendant accompanied by plaintiff, went to Reidsville to make arrangements to secure the assistance of another physician.

Defendant and the assistant physician went to plaintiff's home, arriving there at about twenty minutes to 11 o'clock. After the assistant physician had examined the patient in the presence of the defendant, to ascertain the condition of her heart, they began the operation at fifteen minutes to 11. During the operation, chloroform was administered to the patient. When the operation was concluded at 12 o'clock, she was "asleep" from the effect of the chloroform. The assistant physician remained at the home of the plaintiff for about five minutes after the operation was concluded and then left. The defendant remained for thirty or thirty-five minutes. During this time, he was in the room with the patient, and frequently examined her pulse and observed her condition. Before leaving, defendant told the plaintiff that his wife was getting along all right, that he had other patients whom he must visit, and that he would meet plaintiff in his office at 1 o'clock to give him medicine for this wife. Plaintiff left his home about ten minutes to 1 o'clock and went in his automobile to the office of defendant, a distance of about three miles. Defendant met the plaintiff at his office, and gave him medicine for his wife. While plaintiff was away from his home, his wife died suddenly. Only her mother and members of the family were present when she died. None of them was a competent nurse. There was evidence tending to show that just before her death, she had a severe hemorrhage. She did not fully recover from the effects of the chloroform or of the shock incident to the operation prior to her death.

In his complaint, plaintiff alleged that defendant was negligent, first, in that he failed, by the exercise of due care, to properly prepare his patient, plaintiff's intestate, for the operation; and second, in that, after the operation, and before his patient had recovered from the effects of the anæsthetic administered to her during the operation, and from, the shock incident thereto, he left her without making provision for the presence of another physician or of a competent nurse, and that such negligence was the direct and proximate cause of the death of plaintiff's intestate. On these allegations, plaintiff demanded judgment that he recover of defendant the sum of $50,000 as damages.

At the close of the evidence for the plaintiff, on motion of defendant, the action was dismissed as of nonsuit.

From the judgment dismissing the action, plaintiff appealed to the Supreme Court.

Dillard S. Gardner, of Marion, and P. T. Stiers, of Reidsville, for appellant.

King, Sapp & King, of Greensboro, and Glidewell, Dunn & Gwyn, of Reidsville, for appellee.

CONNOR J.

Applying the well-settled rule uniformly enforced in this jurisdiction with respect to the consideration of the evidence on a motion for judgment as of nonsuit, made as provided by C. S. § 567 ( Goss v. Williams, 196 N.C. 213, 145 S.E. 169; Nash v. Royster, 189 N.C. 408, 127 S.E. 356; Oil Co. v. Hunt, 187 N.C. 157, 121 S.E. 184; Christman v. Hilliard, 167 N.C. 4, 82 S.E. 949), to the evidence in the instant case, we are of the opinion that there was no error in the judgment dismissing this action at the close of the evidence for the plaintiff. Considering the evidence in the light most favorable to the plaintiff, and giving him the benefit of every reasonable intendment, and of every reasonable inference which can be drawn therefrom, as we are required to do by the rule, we concur in the opinion of the trial court that there was no evidence from which the jury could have found that plaintiff is entitled to recover of the defendant in this action. The judgment must therefore be affirmed....