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  "id": 8631917,
  "name": "FRANCES GRIER, Administratrix of the Estate of MISSOURI GILMORE, Deceased, v. RENA C. PHILLIPS",
  "name_abbreviation": "Grier v. Phillips",
  "decision_date": "1949-10-12",
  "docket_number": "",
  "first_page": "672",
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    "parties": [
      "FRANCES GRIER, Administratrix of the Estate of MISSOURI GILMORE, Deceased, v. RENA C. PHILLIPS."
    ],
    "opinions": [
      {
        "text": "WiNborNe, J.\nDid the trial court err in rendering judgment -as of nonsuit from which this appeal is taken ? This is the only question here presented. And taking the evidence offered by plaintiff, as shown in the case on appeal, in the light most favorable to plaintiff, and giving to plaintiff the benefits of every reasonable intendment upon the- evidence .and every reasonable inference to be drawn therefrom, as must be done in considering a motion for judgment as of nonsuit, Gr.S. 1-183, we are of opinion and hold that the evidence is insufficient to carry the ease to the jury.\nTbe burden was on plaintiff to show by evidence not only that defendant was negligent as alleged in the complaint, but that her negligence Avas the proximate cause, or one of the proximate causes of the intestate\u2019s death. The proof should hai^e been of such character as reasonably to warrant the inference required to be established, and not merely sufficient to raise a surmise or conjecture as to the existence of the essential fact. Smith v. Wharton, 199 N.C. 246, 154 S.E. 12.\nThe plaintiff contends that there is error in the judgment below in several respects: First: It is contended that the defendant, in extracting the teeth of intestate, Avas practicing dentistry without a license so to do, in violation of the statute, G.S. 90-29, enacted for the protection of the public, and in the interest of public safety, for which a penalty is prescribed by the provisions of G.S. 90-40; that, hence, she was guilty of negligence per se; and that the evidence tends to show that such negligence was the proximate cause, or one of the proximate causes of the pain the intestate suffered, and of her subsequent death.\nAs to this first contention: the mere Avant of a license to practice dentistry does not raise any inference of negligence. If an unlicensed dentist exercises the requisite skill and care in administering treatment to a patient, he is not liable in damages for injury to the patient, merely because of his want of a license. 41 Am. Jur. 202. Brown v. Shyne, 242 N.Y. 176, 151 N.E. 197, 44 A.L.R. 1407; Hardy v. Dahl, 210 N.C. 530, 187 S.E. 788.\nIn the Hardy case, in Avhich the plaintiff sought to hold defendant, an unlicensed naturopathist, liable for alleged wrongful death, it is said in opinion by Devin, J.: \u201cThe fact that the defendant was engaged in treating patients without haA'ing obtained license so to do, in violation of C.S. 6708, was not eA\u00dadence of negligence in the treatment of plaintiff\u2019s intestate . . . The question was not whether he was licensed, or not, but whether he exercised proper care in the treatment of a patient. As was said in Brown v. Shyne . . . 'Unless the plaintiff\u2019s injury was caused by carelessness or lack of skill, the defendant\u2019s failure to obtain a license was not connected with the injury.\u2019 \u201d And the opinion there concludes that \u201cif defendant has been engaged in treating diseases in violation of the statute, he is liable to indictment, and, upon conviction, to suffer the prescribed penalty, but in a civil action, bottomed upon the law of negligence, the failure to possess a State certificate is immaterial on the question of due care.\u201d\nAnd in keeping with the ruling in the Hardy case, while it is provided by statute, in this State, that the practice of dentistry Avithout a license is forbidden, G.S. 90-29, for violation of Avhich, upon conviction, a punishment is prescribed, G.S. 90-40, the failure to possess such license is immaterial on the question of due care.\nSecond: It is contended tbat defendant, in practicing dentistry, without a license so to do, was required to exercise the care and skill of a licensed dentist. This appears to be the law. See Hardy v. Dahl, supra. And \u201cdentists, in their particular fields, are subject to the same rules of liability as physicians and surgeons.\u201d Smith v. McClung, 201 N.C. 648, 161 S.E. 91, citing McCracken v. Smathers, 122 N.C. 799, 29 S.E. 354, and Nash v. Royster, 189 N.C. 408, 127 S.E. 356.\nIn Nash v. Royster, it is stated that the law holds a physician or surgeon \u201canswerable for any injury to his patient proximately resulting from a want of that degree of knowledge and skill ordinarily possessed by others of his profession, or for the omission to use reasonable care and diligence in the practice of his art, or for the failure to exercise his best judgment in the treatment of the case.\u201d\nAnd in the case of McCracken v. Smathers, supra, the Court held that the degree of care and skill required of a dentist to his patient is that possessed and exercised by the ordinary members of his profession.\nIn the light of these principles, plaintiff in the present case contends, in the first place that there is evidence from which a jury might reasonably find that defendant, in extracting the teeth of intestate, failed to use reasonable care, that is, was negligent in the way and manner she performed the operation, and that such negligence was the proximate, or one of the proximate causes of the wrongs of which complaint is made. As to this contention, evidence is lacking as to how defendant extracted the teeth, whether she did or did not perform the operation in keeping with the care required of a licensed dentist. The evidence on which plaintiff relies is purely conjectural and speculative. Such evidence is insufficient to support a finding that defendant extracted the teeth in a negligent manner, that is, failed to exercise due care in extracting them.\nIn the next place, plaintiff contends that all the evidence shows that defendant lacked the knowledge and skill ordinarily possessed by members of the dental profession; that a dentist possessing such knowledge and skill, upon examination of intestate\u2019s mouth, would have detected the symptoms of Yincent\u2019s disease, or trench mouth, with which intestate was suffering, and would have so diagnosed her condition, and, upon such diagnosis, would have known that it would be dangerous to extract teeth in the presence of such disease; and that, hence, in extracting the teeth of intestate under such circumstances and conditions defendant negligently violated the duty she owed to the intestate, which negligence proximately caused or contributed to wrongs of which complaint is made.\nAs to this contention, it is conceded on this record that defendant lacked the knowledge and skill of a licensed dentist.\nBut the evidence offered by plaintiff fails to show that defendant\u2019s lack of knowledge and skill in dentistry was the proximate cause or one of the proximate causes of the wrongs alleged by plaintiff. And in this connection, there is evidence that in the study of dentistry there is a course in oral pathology, the science that treats of diseases of the mouth, including-Yincent\u2019s disease, and that there is danger in pulling teeth in the presence of this disease. There is no evidence as to what was the condition of the mouth of intestate on 18 August, 1947, the day the teeth were extracted. While Dr. Barnes, in examining intestate on 22 August, found her gums swollen and her mouth inflamed, and detected odors characteristic of Vincent\u2019s disease, he was unwilling to give an opinion as to whether these conditions existed on 18 August, 1947. And Dr. Rasberry testified that he predicated his opinion upon the impression that Dr. Barnes had testified that in examining intestate on 22 August he found the \u201cone, two and three things necessary to diagnose it as Vincent\u2019s disease, general mouth infection, ulcers in the mouth, white caps in the ulcers.\u201d And the record fails to show that Dr. Barnes so testified. Moreover, Dr. Rasberry says that if only two of these essentials were present, he would not give it as his opinion that intestate had Vincent\u2019s disease on 18 August, and, furthermore, if all three conditions existed, he would not make a diagnosis without a smear test. Thus the evidence is insufficient to support a finding by the jury that intestate had Vincent\u2019s disease at the time her teeth were extracted by defendant. Hence, no causal relationship is shown.\nThe judgment below is\nAffirmed.",
        "type": "majority",
        "author": "WiNborNe, J."
      }
    ],
    "attorneys": [
      "Connor, Gardner & Connor for plaintiff, appellant.",
      "Lucas <& Rand and Z. Hardy Rose for defendant, appellee."
    ],
    "corrections": "",
    "head_matter": "FRANCES GRIER, Administratrix of the Estate of MISSOURI GILMORE, Deceased, v. RENA C. PHILLIPS.\n(Filed 12 October, 1949.)\n1. Trial \u00a7 22a\u2014\nOn motion to nonsuit, the evidence will be considered in the light most favorable to plaintiff, and plaintiff is entitled to every reasonable intendment thereon and every reasonable inference therefrom. G.S. 1-183.\n2. Physicians and Surgeons \u00a7 20\u2014\nIn an action for malpractice, the burden is upon plaintiff to show not only negligence but that such negligence was the proximate cause or one of the proximate causes of the injury or death.\n3. Trial \u00a7 23a\u2014\nEvidence which raises a mere surmise or conjecture as to the existence of a fact essential to the cause of action is insufficient to be submitted to the jury.\n4. Physicians and Surgeons \u00a7 14\u2014\nIn an action for malpractice, the fact that defendant practiced dentistry without a license is immaterial upon the question of due care. G.S. 90-29, G.S. 90-40.\n5. Physicians and Surgeons \u00a7 15\u2014\nA person practicing dentistry without a license is required to exercise the care and shill of a licensed dentist.\n6. Physicians and Surgeons \u00a7 14\u2014\nDentists, in their particular fields, are subject to the same rules of liability as physicians and surgeons.\n7. Physicians and Surgeons \u00a7 20\u2014\nPlaintiff\u2019s evidence was to the effect that her intestate went to the office of a licensed dentist, that the dentist was out and that the dentist\u2019s wife, who had no license, extracted three of intestate\u2019s teeth, that thereafter intestate\u2019s gums became swollen and inflamed and that intestate died some ten days later of advanced nephritis. Held: There was no sufficient evidence to be submitted to the jury of negligence in the way or manner in which the teeth were extracted.\n8. Same \u2014 Evidence held insufficient to show causal connection between extraction of teeth and death of intestate.\nPlaintiff\u2019s evidence tended to show that her intestate went to 'the office of a licensed dentist, that he was out, and that the dentist\u2019s wife, the defendant, wlio had no license, extracted three of Intestate\u2019s teeth, and that intestate died some ten days thereafter of advanced nephritis. There was evidence that there is danger in pulling teeth in the presence of Vincent\u2019s disease and that intestate had this disease some four days after the extraction, hut plaintiff\u2019s expert testimony raised only a surmise as to whether intestate had this disease at the time of the extraction. Held: Defendant's motion to nonsuit was properly allowed.\nAppeal by plaintiff from Morris, J., at May Term, 1949, of WilsoN.\nCivil 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.\nPlaintiff alleges in her complaint as a first cause of action:\nThat on morning of 18 August, 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\u2019s 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\u2019s chair, defendant Avrongfully, 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\u2019s life; and that immediately after her teeth were pulled, and as a result thereof the intestate became seriously ill and died 28 August, 1947, of an infection proximately caused by and resulting from the said wrongful conduct of defendant to the great damage of plaintiff.\nAnd for a second cause of action, plaintiff reiterates the allegations of the first cause of action, and alleges that on 18 August, 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\u2019s wrongful conduct, to her damage, etc.\nDefendant, 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 18 August, 1947, plaintiff\u2019s intestate came to the office of Dr. W. H. Phillips for the purpose of haying three teeth pulled; that defendant at request of plaintiff\u2019s intestate caused her to be seated in a dental chair and she, the defendant, examined the mouth and teeth of the plaintiff\u2019s intestate, and found that the three teeth remaining in the intestate\u2019s 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.\nPlaintiff offered on the trial in Superior Court the above admissions of defendant and the testimony of six witnesses, which may be summarized as follows:\n(1) L. W. Morris, of Wilson, North Carolina, by whom Missouri Gilmore, plaintiff\u2019s intestate, had been employed for twenty years, testified: That after an absence of a few weeks she came to him.Monday morning, 18 August, 1947, to get $3.00 to have three teeth pulled; that at that time \u201cshe was thinner and weaker\u201d than he had ever seen her; that about an hour later she came back for $2.00, \u2014 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\u2019t 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.\n(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 \u201cwhere they had pulled out her teeth\u201d; that she didn\u2019t look right, \u2014 looked like she was going crazy \u2014 describing her actions; that she did not go to bed all night, \u2014 but sat on a trunk by her door in her room, \u2014 and was in pain \u2014 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, \u201cshe was a heap older than me, and I am 65.\u201d\n(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 \u201cboth gums, up and down, looked like it had been plowed up,\u201d \u2014her gums were \u201clike dark blood,\u201d and bad odors came from her mouth; that her aunt had eight or nine old snags, \u2014 three solid teeth,- \u2014 the rest kind of snags.\n(4) Dr. Boise Barnes, a medical expert, testified: \u201cI 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\u2019s 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\u2019t 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\u2019t notice that she was in pain. She didn\u2019t react, didn\u2019t 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\u2019s 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\u2019s disease to develop and become present to the infection stage in 4 days\u2019 time ... In my opinion, the cause of her death was a chronic condition of the kidneys, uremia, and that with Vincent\u2019s infection would be my diagnosis. I signed the death certificate reading \u2018Death due to Adv. nephritis \u2014 Vincent infection of throat and gums.\u2019 \u201d\nThe doctor continued on cross-examination: \u201cWhen 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.\u201d Then, on re-direct examination, Dr. Barnes said: \u201cI am stating that the condition of her kidneys accelerated her death.\u201d Then on re-cross-examination, he continued: \u201cShe was an old woman and in a weakened condition . . . She had snags in her head a number of years, as Frances said. Usually it is a common condition of infection when there are broken-off teeth. It can affect one\u2019s health adversely.\u201d\n(A copy of the death certificate was introduced only to be considered as corroborative evidence, \u201ctending to bear out the witness Barnes\u201d and not as substantive evidence.)\n(5) Dr. E. A. Rasberry, a qualified medical expert, testified in pertinent part: \u201cI am familiar with the disease known as Yincent\u2019s. It is commonly known as .trench mouth caused by two organisms working together which seem to harbor in the mouth. . . . When a smear from trench mouth is spread on a slide, you can see two distinct organisms. ... I heard Dr. Barnes testify this morning. Yincent\u2019s disease is known as a chronic disease. . . . Assuming it to be true and that the jury finds by the greater weight of the evidence that the condition in plaintiff\u2019s intestate\u2019s mouth were as testified to by Dr. Barnes on August 22nd, when he first saw her, I have an opinion satisfactory to myself as to whether or not the plaintiff\u2019s intestate had Yincent\u2019s disease on August 18, 1947. My opinion is that there was Yincent\u2019s disease four days previous.\u201d\nAnd on cross-examination the doctor in summary testified: \u201cWhen I gave to the court \u00e1nd the jury my sworn opinion that she had trench mouth on August IS, it was because I thought Dr. Barnes had said she had general infection, ulcerations and white caps, and called it trench mouth ... I have told you that there are one, two and three things necessary to diagnose it as Yincent\u2019s disease; general mouth infection, ulcers in the mouth, white caps in the ulcers; and if Dr. Barnes observed those three things, I am of the opinion that the plaintiff\u2019s intestate had it four days before. If from Dr. Barnes\u2019 testimony, it was found that she had only general infection and ulcers, she could have had some other infection.\u201d\nThen, in answer to this question: \u201cIf he (Dr. Barnes) found only two-infection and the ulcers, are you now willing to swear that if he found those two things on the 22nd of August, are you willing to swear she had Vincent\u2019s disease on tbe 18th?\u201d, the doctor answered: \u201cNo, I am not. Even if Dr. Barnes testified all three conditions existed, I would not make a diagnosis without a smear.\u201d\nThis witness, Dr. Basberry, also testified that: \u201cNephritis is defined as an infection of the kidneys ... We call it inflammation of the kidney ... it is a condition which has an infection at the root of the trouble of the throat, of the ear, or scarlet fever, all that affects the kidneys. In my opinion there is danger in pulling teeth in the presence of any infection in the mouth. Assuming it to be true and the jury should find by the greater weight of the evidence that the plaintiff\u2019s intestate had nephritis at the time she had her teeth extracted by the \u25a0defendant and if the jury should find that she then had Vincent\u2019s disease, in my opinion if this woman had chronic nephritis with Vincent\u2019s disease and if she had her teeth pulled, it would have a deleterious effect on her condition. By deleterious effect on the patient, I mean if she had Vincent\u2019s disease it would be hazardous. She would have less chance. Her general condition would be affected adversely. Assuming it to be true and that the jury should find by the greater weight of the evidence that the plaintiff\u2019s intestate had an advanced case of nephritis on the 22nd day of August, 1941, as testified to by Dr. Barnes, in my opinion the plaintiff\u2019s intestate would have had nephritis four days previously, on August 18, 1941.\u201d\n(6) Dr. Dewey Boseman, a dental expert, testified: \u201cA course of dental education includes the course of oral pathology. That is the science that treats of the diseases of the mouth-or adjoining tissues. It includes the recognition, diagnosis and treatment of Vincent\u2019s disease. There is danger in pulling teeth in the presence of Vincent\u2019s disease.\u201d\nMotion of defendant for judgment as of nonsuit at close of plaintiff\u2019s evidence was granted. And from judgment in accordance therewith plaintiff appeals to Supreme Court and assigns error.\nConnor, Gardner & Connor for plaintiff, appellant.\nLucas <& Rand and Z. Hardy Rose for defendant, appellee."
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