The Court having duly considered the petition of the respondent for a rehearing in this case, and being satisfied that it did not in reaching its conclusion overlook any material fact or issue involved in the case, the rehearing asked for is refused, the petition dismissed, and *Page 386 the order staying the remittitur revoked. However, for the purpose of enlarging upon one phase of the case, the opinion heretofore filed in the case will be amended by adding thereto the following statement:
However, we wish to again call attention to the fact that the trial Judge did not grant the motion for a nonsuit upon the first ground (set out above), upon which the motion was based, but overruled the motion as to that ground. The respondent, upon due notice, has asked this Court to sustain the order of nonsuit upon the ground that the trial Judge should have sustained that ground, also respondent's position being stated thus: "The plaintiff having elected to proceed to trial on a cause of action sounding in tort rather than on contract, thereby waiving any liability of the defendant arising out of contract, and having failed to prove any legal duty resting upon the defendant to furnish her intestate with medical services, the Court should, upon motion made by the defendant, have ordered a nonsuit upon that ground." In this connection respondent calls attention to the fact that, at the commencement of the trial of the case, counsel for the plaintiff, in response to question, stated that the action was an action in tort, and the parties went to trial on that question. As stated above, we agree with his Honor's ruling on this phase of the case. In ruling upon the question, his Honor made reference to the case of Owens v. AtlanticCoast Lumber Corporation, which case was twice before this Court, reported in 107 S.C. 425, 93 S.E., 7, and Id.,108 S.C. 258, 94 S.E., 15. In our opinion the case is in point. This action was instituted by Julius Owens, as administrator of the estate of Florence Owens, deceased (who was the wife of Julius Owens), against the Atlantic Coast Lumber Corporation, alleging damages for breach of defendant's contract to provide medical attention to his sick wife, the said Florence Owens, for lack of which she died. In that case this Court held that the case contained only one cause of action, and that it was based on tort; that the reference *Page 387 in the complaint to the contract were for the purpose of showing the relation between the parties out of which the tort arose. That is the case in the case at bar, and, if the facts alleged are established, the action can be maintained against the defendant. Further, under our view of the record, we think the issues should have been submitted to the jury.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES STABLER, CARTER and BONHAM concur.