Marvin

The plaintiff, appellant herein, brought this action against the defendant, respondent herein, who is an osteopathic physician and surgeon, to recover damages for injuries claimed to be the result of a hemorrhoidectomy performed by the latter; alleged two causes of action, viz., one on the theory of negligence and the other for breach of warranty ; went to trial; after presentation of his case, was non-suited as to both causes of action; and appeals from the judgment of nonsuit entered accordingly. The basis for granting the nonsuit on the negligence cause of action was the insufficiency of the evidence to show either the cause of the plaintiff’s claimed injuries, or that the alleged cause thereof was a lack of ordinary skill measured by medical standards; and on the warranty cause of action, was the failure to show the existence of a warranty.

On November 29, 1958, the defendant operated upon the plaintiff for a previously diagnosed hemorrhoid and eryptitis condition; employed what the doctor described as the " clamp and cautery method”; during the course of the operation discovered a fistula located behind the exterior sphincter muscle; cut through the muscle; and removed the…