![]() ![]() The only substantial basis for the plaintiff's claim is the testimony that the defendant also said before the operation was decided upon, "I will guarantee to make the hand a hundred per cent perfect hand or a hundred per cent good hand." The plaintiff was present when these words were alleged to have been spoken, and, if they are to be taken at their face value, it seems obvious that proof of their utterance would establish the giving of a warranty in accordance with his contention. The above statements could only be construed as expressions of opinion or predictions as to the probable duration of the treatment and plaintiff's resulting disability, and the fact that these estimates were exceeded would impose no contractual liability upon the defendant. There was evidence to the effect that before the operation was performed the plaintiff and his father went to the defendant's office, and that the defendant, in answer to the question, "How long will the boy be in the hospital?" replied, "Three or four days, not over four then the boy can go home and it will be just a few days when he will go back to work with a good hand." Clearly this and other testimony to the same effect would not justify a finding that the doctor contracted to complete the hospital treatment in three or four days or that the plaintiff would be able to go back to work within a few days thereafter. The scar tissue was the result of a severe burn caused by contact with an electric wire, which the plaintiff received about nine years before the time of the transactions here involved. ![]() The operation in question consisted in the removal of a considerable quantity of scar tissue from the palm of the plaintiff's right hand and the grafting of skin taken from the plaintiff 's chest in place thereof. The foregoing exceptions were transferred by Scammon, J. The plaintiff having refused to remit, the verdict was set aside "as excessive and against the weight of the evidence," and the plaintiff excepted. The court denied the motion upon the first three grounds, but found that the damages were excessive, and made an order that the verdict be set aside, unless the plaintiff elected to remit all in excess of $500. The defendant seasonably moved to set aside the verdict upon the grounds that it was (1) contrary to the evidence (2) against the weight of the evidence (3) against the weight of the law and evidence and (4) because the damages awarded by the jury were excessive. During the argument of plaintiff's counsel to the jury, the defendant claimed certain exceptions, and also excepted to the denial of his requests for instructions and to the charge of the court upon the question of damages, as more fully appears in the opinion. The writ also contained a count in negligence upon which a nonsuit was ordered, without exception.ĭefendant's motions for a nonsuit and for a directed verdict on the count in assumpsit were denied, and the defendant excepted. New trial.Īssumpsit against a surgeon for breach of an alleged warranty of the success of an operation. ![]() ![]() Verdict for plaintiff, which was set aside. Transferred from Superior Court, Coos County Scammon, Judge.Īction by George Hawkins against Edward R. ![]()
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