(concurring in affirmance). Plaintiff sued on two counts, one in assumpsit, alleging breach of contract, one in trespass, alleging malpractice.
While it is true that in the contract count, plaintiff alleged that the defendants agreed to cure his ulcer, it is also true that the contract count contained allegations that defendants agreed to perform the operation in a good and workmanlike manner, and contained a number of other specifications of professional negligence, all of which were alleged to have constituted breach of contract by the defendants.
Count I, the contract count, contained the following:
“4. That in January of 1964, Plaintiff, Richard A. Guilmet, for good and valuable consideration, entered into an agreement with Defendants to perform an operation known as a gastric resection upon Plaintiff and to administer subsequent post-operative care; that thereupon Defendants in furtherance of their contract jointly undertook to examine, diagnose, treat and operate upon and care for Plaintiff so as to cure him of the stomach disorder from which he was then suffering.
“5. That Defendants agreed as part of their employment to perform said operation in a good and workmanlike manner; that as specialists in surgery they would cure Plaintiff by said operation and that Plaintiff would be able to leave the hospital in a short time and resume his occupation and normal family life.
“6. That Plaintiff duly performed all the terms and conditions of the agreement to be performed on his part; and thereafter on or about February 27, 1964, at Beaumont Hospital, Royal Oak, Michi*72gan, Defendants, in pursuance of their agreement, placed Plaintiff under anesthetic and undertook to perform the operation herein referred to.
“7. That Defendants in the course of said operation and in breach of their contract, in an unworkmanlike, unprofessional and unskilled manner, injured and perforated Plaintiff’s esophagus, a heretofore healthy part of his body which required no treatment.
“8. That Defendants in further breach of their contract, failed to timely diagnose and ascertain the aforementioned damage and to promptly and properly remedy their unskilled performance by proper operative and post-operative examination and treatment; that Defendants’ post-operative procedures, particularly the oral administration of food and liquid which passed through the perforation in Plaintiff’s esophagus into his chest cavity thereby causing aggravation and infection, was contrary to Defendants’ agreement to exercise care and skid in administering to Plaintiff.
“9. That Defendants in further breach of their contract carelessly deposited and left a clamp within Plaintiff’s abdomen.
“10. That Defendants in further breach of their contract failed to advise Plaintiffs of the risks involved and serious consequences attendant to said operation and failed to achieve satisfactory results.
“11. That Defendants wrongfully misrepresented to Plaintiffs and concealed from them the injury to Plaintiff’s esophagus and their careless and negligent acts in said operation as well as the extent of the surgery performed and the permanent' and serious nature of the injury resulting from their treatment.”
The cause was tried and submitted to the jury on both counts. At the conclusion of its deliberations, the jury returned and the following took place:
“(The jury, having completed their deliberations, returned to the courtroom.)
*73“Jury roll called.
“The Clerk: Members of tbe Jury, have ten or more of you agreed upon a verdict? If so, let your Foreman speak.
“Foreman: Yes, we have.
“The Clerk: What is the verdict of the Jury?
“Foreman: The verdict of the Jury is that on the Count of malpractice, not guilty. On breach of contract, guilty.
“The Court: The word of ‘guilty’ is not used except in criminal matters. Is it your finding that you found no negligence?
“Foreman: Yes.
“The Court: The finding of the Jury is no negligence?
“Foreman: That’s correct.
“The Court: You find breach of contract?
“Foreman: That’s right. Correct.
“The Court: What did you assess by way of damages ?
“Foreman: Fifty thousand.
“(Jury sworn as to verdict.)
“The Court: Do either Counsel care to have the Jury polled?
“Mr. Whitfield [attorney for defendants]: Please, your Honor.
“(Jury polled by the clerk.)
“The Court: Ladies and Gentlemen, that concludes the trial of this cause.
“(At this time the jurors left the courtroom.)”
My Brothers have interpreted this verdict as constituting a finding that, without committing any of the acts of professional negligence alleged, the defendants were nonetheless liable upon a breach of a contract to effect a cure.
I do not so read the verdict of the jury.
While it was proper for the jury to return separate findings upon the two counts — assumpsit and trespass — it was not proper for the jury to return *74special or separate verdicts on the various specifications of breach of contract.
GCR 1963, 514 provides for the submission of a cause to a jury on special issues. In all other cases a jury verdict is a general verdict.
The jury verdict here was a general verdict upon the breach of contract count, and did not, as my Brothers suppose, negate the existence of those acts of negligence which were charged as breach of contract.
The trial court’s oral question from the bench,
“The finding of the jury is no negligence?” did not constitute a special verdict under GCR 1963, 514. It did not control or limit the general verdict on the contract count.
The trial judge, throughout his instructions, referred to the assumpsit and trespass counts as “contract” and “negligence”.
He was attempting to clarify the foreman’s report that the verdict was “not guilty” as to malpractice and “guilty” as to breach of contract.
The only proper question the court could have been asking, and, in my opinion, the real purpose of his inquiry was—
“Do you find no cause for action as to the count of negligence?”
Properly considered, the verdict of the jury merely constituted a finding of no cause for action on Count II of the plaintiff’s complaint (the trespass or negligence count) and a verdict for the plaintiff upon Count I of the plaintiff’s complaint (the assumpsit or contract count).
This result is the more understandable when we consider that the trial judge severely limited the jury’s consideration of Count II.
*75“Now although the plaintiffs in this cause have also claimed that the defendants failed to make timely diagnosis and failed to promptly and properly remedy plaintiff’s post-operative complications by proper operative and post-operative examination and treatment, and also claim that the post-operative procedures, particularly the oral administration of food and liquid were careless and negligent and that the defendants carelessly and negligently deposited and left a clamp within the plaintiff’s abdomen, and the defendants failed to advise the plaintiffs of the risks involved, and that the defendants failed to use the proper technique in the performance of the operation so as to not injure plaintiff’s esophagus, and that the defendants failed to promptly call in consultants, let me say to you that the evidence does not disclose that their performance in these regards was not proper and in accordance with the medical standards of the community. Accordingly I direct that you disregard these claims and that they play no part in your deliberations as to whether or not the defendants were in fact negligent.”
The trial judge did not similarly limit its consideration of the jury with respect to the allegations of Count I, and there is no reason here to assume that the jury did not find that the conduct of the defendants was “contrary to Defendants’ agreement to exercise care and skill in administering to Plaintiff” as alleged in Count I.
In my view, the law should indulge every presumption that a physician’s medical assurances do not constitute a contract to cure. The verdict here should be sustained, and can be sustained without encouraging such allegations in the future.
Adams and Williams, JJ., concurred with T. E. Brennan, J.