Noel v. Proud

The opinion of the court was delivered by

Schroeder, J.:

This is an action against a physician by a patient wherein breach of an express warranty is alleged as the basis for the recovery of damages. Appeal has been duly perfected by the defendant physician from an order of the trial court overruling a demurrer to the amended petition.

The question presented is whether the petition states a good cause of action sounding in contract or one in tort for malpractice. The statute of limitations would bar the latter but not the former.

The petition was filed January 30, 1960, in the district court of…