Goodwin v. Hersom

65 Me. 223, 1875 Me. LEXIS 49

Opinion

Barrows, J.

The plaintiff must recover, if at all, in accordance as well with his allegations as with his proof.

He does not allege in his writ that the defendant made any pretensions to extraordinary skill as a surgeon, or undertook to warrant a prompt or perfect cure, or that he was induced to employ the defendant by means of any such pretensions or promises.

The only issue presented and joined in these pleadings by the parties, was, whether the defendant was guilty of a want of the ordinary skill and care which every professional man impliedly undertakes to bestow upon a case committed to his charge.

In view of the testimony introduced by the plaintiff and recited in the exceptions, the instruction was appropriate, in order to direct the attention of the jury to the issue upon which they were to pass; and it affords the plaintiff no just cause of complaint.

Exceptions overruled.

Ai^pleton, C. J., Walton, Daneorth, Yirgin and Peters, JJ"., concurred.