Waugh, J.c.c. (temporarily assigned).
The corporate defendant moves for summary judgment in its favor (although the notice of motion seeks summary judgment in favor of the plaintiff); or in the alternative to remand the matter to the district court for trial on the ground that the amount in litigation is within the jurisdiction of the district court; and to amend the pretrial order with respect to the name of the doctor performing the operation in question.
Plaintiff, George F. Claus, filed a single count complaint against a Dr. William F. Brodhead and Union Medical Clinic, Inc. The gravamen of the complaint is set forth in paragraph No. 8 thereof:
"8. On or about October 11, 1952, the defendant, William F. Brodhead, an officer, agent, servant or employee of the defendant corporation, without warning, notice or consent of the plaintiff or request and permission from the plaintiff, did wilfully, recklessly, fraudulently, carelessly and negligently, inflict an assault and battery upon the plaintiff, in that he did perform an operation on the plaintiff involving surgery."
The individual defendant, not now a resident of the State, was not served; the corporate defendant answered; pretrial procedure has been completed and the case pretried.
While the complaint is inartistically drawn and does not actually plead fraud in accordance with rules of court (see R.R. 4:9-1), the pretrial order, dated June 1, 1955, states
"suit is based upon assault, battery, and fraud," and further states: "the fraud and misrepresentation on which plaintiff predicates its case is a pamphlet (marked P-2 for identification) and also certain representations made by defendant's alleged agent, Dr. Brodhead, and also a nurse in the Clinic (unidentified) and Dr. Harry Hallabach, Secretary and Treasurer of the defendant Corporation, on the representations that he would be cured of his hemorrhoids without surgery."
The following facts are to be gleaned from the pleadings, affidavits and depositions. Since 1950, plaintiff suffered from hemorrhoids. Desiring to avoid surgery, he sought other means of cure. He answered an advertisement of defendant corporation and received a booklet (P-2 for identification) setting forth a method of treating rectal ailments. Among other bits of information this pamphlet states:
"In selected cases, where neglect has not been prolonged -- and this includes most cases of internal piles -- the patient will respond to injection treatment."
"The injection treatment is not painful. Relief comes quickly. And if the physician's schedule of treatments is adhered to, a cure can be effected."
"In the past, the treatment of fistula meant a surgical operation which in many instances proved unsatisfactory because it frequently missed side pockets and blind channels."
"A competent physician can free you from pain by the injection treatment when he accepts your case."
The sufferer is further advised that:
"Any sufferer actually interested in being treated by a physician recommended by me, will upon request, be furnished with ample and conclusive proof of the successful record of our recommended physicians in effecting cures for persons with similar ailments who have freely expressed their gratitude over their own signature. These letters come to us from people in all walks of life, poor and rich alike."
"Note: The doctor who treats you becomes your personal physician. He, alone, is responsible to you."
Plaintiff wrote the corporate defendant, and received a reply from the individual defendant suggesting an appointment
Defendant kept the appointment and began a series of injections for which he paid $200 in cash and check, payments being made to Dr. Brodhead, a nurse and one Harry Hallabach, secretary-treasurer of the defendant corporation.
During the course of treatments the plaintiff was told by Mr. Hallabach, Dr. Brodhead and the nurse, "We do not operate here. We do not operate. We treat only by injection."
Plaintiff claims that an operation was performed on him without his consent on October 11, 1952. This alleged operation is best set forth in plaintiff's own words taken from his deposition:
"Q. Now, you say that an operation was performed upon you? A. Yes, yes, sir.
Q. Who told you that an operation was going to be performed upon you? A. Nobody told me that. On three previous occasions, three different people, Harry Hallabach, the owner, Dr. Brodhead and a nurse told me, 'We do not ...