This case involves an action in four counts by the plaintiff, Mark A. Smith, Jr., individually and as next friend of his minor daughter, Leila Smith. Three of the counts are directed against the defendant, Dr. Kenneth S. Taratus, a dentist limiting his practice to orthodontics. Another count was directed against another defendant dentist also practicing orthodontic dental services but that defendant is no longer involved in this case.
Count 1 alleged an express breach of warranty; *29Count 2 a breach of contract; and Count 3 was for negligent treatment. Plaintiff alleges that his minor daughter was treated by Dr. Taratus to correct certain irregularities in her teeth and malocclusion and that in treating her Dr. Taratus expressly warranted his orthodontic treatment would cure her condition. His treatment continued for some time until he released her stating that the condition for which orthodontic treatment had been contracted had been fully corrected. Thereafter it was determined that the minor daughter still suffered from malocclusion of her teeth and that further treatment was necessary, resulting in the employment of another orthodontist.
The case came on for trial. At the completion of plaintiffs evidence in response to defendant Taratus’ motion for directed verdict, the court sustained the motion as to Count 1 as to the insufficiency of the evidence to prove an express warranty and a breach of same. However, the court overruled the motion as to Count 2 as to the breach of contract and as to Count 3, the negligence action of malpractice. The jury returned a verdict at the completion of the trial in favor of the defendant Taratus as to Count 1, by direction of the court, and as to both Counts 2 and 3, and the judgment followed the verdict. A motion for new trial was then filed and denied. Plaintiff appeals, alleging only error in the direction of the verdict as to Count 1, contending that there had been evidence offered that would support an express warranty. Held:
1. Generally, a dentist is not an insurer or warrantor that the exercise of his professional judgment will effect a cure of the patient. See Bryan v. Grace, 63 Ga. App. 373 (1c), 379 (11 SE2d 241); Young v. Yarn, 136 Ga. App. 737, 739-740 (3) (222 SE2d 113). The fact that treatment results unfavorably does not in and of itself raise a presumption of want of proper care, skill or diligence. Hayes v. Brown, 108 Ga. App. 360, 363 (1) (133 SE2d 102); Branch v. Anderson, 47 Ga. App. 858, 860 (171 SE 771); Hopper v. McCord, 115 Ga. App. 10, 11(2) (153 SE2d 646).
2. But the question here involved is based upon an alleged express warranty that the defendant doctor expressly stated that his orthodontic treatment would cure the plaintiffs minor daughter’s condition and that he *30released her from treatment after allegedly telling plaintiffs wife that, "the conditions for which orthodontic treatment had been contracted for on behalf of Leila Smith had been fully corrected.” The sole question for determination here is whether the evidence before the court was sufficient for jury determination as to an express warranty and a breach thereof. On motion for directed verdict the evidence must be construed in its light most favorable to the adverse party and against the party making the motion in determining whether the verdict is demanded. See Reiss v. Howard Johnson’s, Inc., 121 Ga. App. 119, 121 (173 SE2d 95); Osborne v. Martin, 136 Ga. App. 86, 88 (5) (220 SE2d 19). Johnson v. Curenton, 127 Ga. App. 687 (2) (195 SE2d 279), does not apply as this testimony did not arise from the party litigant.
The evidence here submitted to establish an express warranty was that the plaintiffs minor daughter had been examined by the defendant doctor who stated she needed orthodontic treatment, had expressed exactly what was wrong with her teeth and "that he would straighten out her condition.” A witness testified positively that the answer to the question that he would straighten out her condition was, "Absolutely.” In further answer to questions in this regard the witness answered that, "he just said he would take care of Leila’s orthodontic problems.” This witness was then propounded the question, "would that mean that he would cure that condition?” The answer to this question was again, "Absolutely.” Here the issue was not one of negligence or breach of contract as á doctor is not an insurer or one who can always effect a cure, Hayes v. Brown, 108 Ga. App. 360, supra, but whether or not the defendant doctor had made an express oral warranty to cure the patient. True, he denied that he had made such express warranty, but did the evidence raise an inference sufficient to deny the defendant’s motion for directed verdict? Since there is no particular form of words needed in order to create a warranty and that warranty may be oral or written it is our opinion that the above testimony was sufficient to create a jury issue. See Dixie Seed Co. v. Smith, 103 Ga. App. 386, 387 (3), 390 (119 SE2d 299); Atlanta Tallow Co. *31v. Eshelman & Sons, 110 Ga. App. 737, 747-748 (140 SE2d 118). Other testimony here shows that following the express warranty and treatment the defendant released the patient as cured. Further treatment was then necessary to obtain a cure, and upon plaintiffs expression of dissatisfaction to the doctor his explanation to the plaintiff was that she was suffering from another problem caused by "a lateral tongue thrust, that there was nothing that he or any orthodontist could do, that the matter should be treated by a speech therapist and that he was very sorry that. . . [plaintiff] . .. had gone to ... [another orthodontist].”
Argued May 2, 1979 Decided July 16, 1979 Rehearing denied July 27, 1979 Peter J. Krebs, for appellants. Powell, Goldstein, Frazer & Murphy, Daryll Love, Anthony L. Cochran, Long, Weinberg, Ansley & Wheeler, Palmer H. Ansley, for appellees.Judgment reversed.
Quillian, P. J., Smith, Shulman, Banke and Carley, JJ., concur. Deen, C. J., Birdsong and Underwood, JJ., dissent.