Lawless

This is an appeal from a judgment of nonsuit entered in an action for malpractice which, it is claimed, resulted in the death of plaintiff’s minor son. In stating the facts we shall, in accordance with the settled rule in cases of nonsuit, disregard conflicts and consider the evidence most favorable to plaintiff.

On March 1, 1939, plaintiff’s twelve-year-old son, Donald, suffered abdominal pains with attendant vomiting and diarrhea. The boy was then living with plaintiff’s aunt, Mrs. Lashley, and on the following morning he was taken by her for treatment to defendant, a physician who had attended Donald since his birth. The defendant took the case history, which included a statement by Donald that he had eaten moldy bologna the previous day, examined the boy’s abdomen by palpation and percussion, took his temperature and examined his chest and lungs. Defendant informed Mrs. Lashley that the boy probably had an attack of ptomaine poisoning, but he also stated “it sounds like we might have an attack of appendicitis.” He recommended a diet, prescribed medicine for ptomaine poisoning and ordered the boy put to bed with an ice bag on his abdomen. On March 3 Mrs. Lashley informed…