them to these three: (1) sufficiency of the evidence; (2) failure to include an essential charge to the jury, and (3) a departure in pleading and variance in proof.
In determining the question of liability the jury was required to decide a number of issues on which there was conflicting testimony.
The plaintiff suffered from a lame appendix, for which he consulted the defendant a number of times during the summer of 1951, the year of the operation, while attending a local university summer school. In the middle of August, when he was through school for a period of weeks, it was his testimony that it was suggested by the doctor that he have his appendix taken out at that time for convenience. Plaintiff denied that there was any flare-upor emergency, but the testimony given by the doctor was to the effect that the plaintiff's condition was acute and an emergency situation had arisen.
The plaintiff and his mother testified that when the operation was arranged, on that day in August, the plaintiff informed the doctor that he would not permit a spinal anesthetic, and that the doctor agreed not to use that type of anesthetic. A second conflict was produced in the evidence when the doctor denied that, and testified he did not recall any such discussion.
A third conflict in the evidence related to the circumstances in connection with the plaintiff's mother signing for his admission at the hospital, which included an authority to use any anesthetic determined upon by the doctor. She was not acting for