Lydamore v. Foote ( 1937 )

Appeal from a judgment of nonsuit, granted at the close of plaintiff’s case. The action was against the defendant, a dentist, for alleged malpractice, arising as stated in the complaint, through the careless and negligent conduct of the defendant in extracting a tooth, and in making sterile the instruments used. The answer alleges and admits, upon information and belief, that the infection charged “ set in in the area of the place where said tooth was extracted ” was caused by plaintiff’s negligence in failing to follow the defendant’s instructions as to postoperative care. From the testimony of the plaintiff, the evidence of a physician, and the allegation or admission quoted above, a prima facie case of malpractice was made out, and the order of nonsuit was error. Judgment and order reversed on the law and facts and new trial granted, with costs to the appellant to abide the event. Hill, P. J., McNamee, Crapser and Heffeman, JJ., concur; Bliss, J., dissents.