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HAWKINS v. McGEE
New Hampshire Supreme Court
84 N.H. 114, 146 A XXXXXXXXXX)
Assumpsit against a surgeon for
each of an alleged wa
anty of the success of an
operation. Trial by jury. Verdict for the plaintiff. The writ also contained a count in negligence
upon which a nonsuit was ordered, without exception.
Defendant's motions for a nonsuit and for a directed verdict on the count in assumpsit were
denied, and the defendant excepted. During the argument of plaintiff's counsel to the jury, the
defendant claimed certain exceptions, and also excepted to the denial of his requests for
instructions and to the charge of the court upon the question of damages, as more fully appears in
the opinion. The defendant seasonably moved to set aside the verdict upon the grounds that it was
(1) contrary to the evidence; (2) against the weight of the evidence; (3) against the weight of the
law and evidence; and (4) because the damages awarded by the jury were excessive. The court
denied the motion upon the first three grounds, but found that the damages were excessive, and
made an order that the verdict be set aside, unless the plaintiff elected to remit all in excess of
$500. The plaintiff having refused to remit, the verdict was set aside "as excessive and against the
weight of the evidence," and the plaintiff excepted.
The foregoing exceptions were transfe
ed by Scammon, J. The facts are stated in the
opinion. . . .
BRANCH, J.
1. The operation in question consisted in the removal of a considerable quantity of scar
tissue from the palm of the plaintiff's right hand and the grafting of skin taken from the plaintiff's
chest in place thereof. The scar tissue was the result of a severe burn caused by contact with an
electric wire, which the plaintiff received about nine years before the time of the transactions here
involved. There was evidence to the effect that before the operation was performed the plaintiff
and his father went to the defendant's office, and that the defendant, in answer to the question,
"How long will the boy be in the hospital?" replied, "Three or four days, not over four; then the
oy can go home and it will be just a few days when he will go back to work with a good hand."
Clearly this and other testimony to the same effect would not justify a finding that the doctor
contracted to complete the hospital treatment in three or four days or that the plaintiff would be
able to go back to work within a few days thereafter. The above statements could only be construed
as expressions of opinion or predictions as to the probable duration of the treatment and plaintiff's
esulting disability, and the fact that these estimates were exceeded would impose no contractual
liability upon the defendant. The only substantial basis for the plaintiff's claim is the testimony
that the defendant also said before the operation was decided upon, "I will guarantee to make the
hand a hundred per cent perfect hand or a hundred per cent good hand." The plaintiff was present
when these words were alleged to have been spoken, and, if they are to be taken at their face value,
it seems obvious that proof of their utterance would establish the giving of a wa
anty in
accordance with his contention.
The defendant argues, however, that, even if these words were uttered by him, no
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easonable man would understand that they were used with the intention of entering "into any
contractual relation whatever," and that they could reasonably be understood only "as his
expression in strong language that he believed and expected that as a result of the operation he
would give the plaintiff a very good hand." It may be conceded, as the defendant contends, that,
efore the question of the making of a contract should be submitted to a jury, there is a preliminary
question of law for the trial court to pass upon, i.e. "whether the words could possibly have the
meaning imputed to them by the party who founds his case upon a certain interpretation," but it
cannot be held that the trial court decided this question e
oneously in the present case. It is
unnecessary to determine at this time whether the argument of the defendant, based upon "common
knowledge of the uncertainty which attends all surgical operations," and the improbability that a
surgeon would ever contract to make a damaged part of the human body "one hundred per cent
perfect," would, in the absence of countervailing considerations, be regarded as conclusive, for
there were other factors in the present case which tended to support the contention of the plaintiff.
There was evidence that the defendant repeatedly solicited from the plaintiff's father the
opportunity to perform this operation, and the theory was advanced by plaintiff's counsel in cross-
examination of defendant that he sought an opportunity to "experiment on skin grafting," in which
he had had little previous experience. If the jury accepted this part of plaintiff's contention, there
would be a reasonable basis for the further conclusion that, if defendant spoke the words attributed
to him, he did so with the intention that they should be accepted at their face value, as an
inducement for the granting of consent to the operation by the plaintiff and his father, and there
was ample evidence that they were so accepted by them. The question of the making of the alleged
contract was properly submitted to the jury.
2. The substance of the charge to the jury on the question of damages appears in the
following quotation: "If you find the plaintiff entitled to anything, he is entitled to recover for what
pain and suffering he has been made to endure and for what injury he has sustained over and above
what injury he had before." To this instruction the defendant seasonably excepted. By it, the jury
was permitted to consider two elements of damage: (1) Pain and suffering due to the operation;
and (2) positive ill effects of the operation upon the plaintiff's hand. Authority for any specific rule
of damages in cases of this kind seems to be lacking, but, when tested by general principle and by
analogy, it appears that the foregoing instruction was e
oneous.
"By 'damages,' as that term is used in the law of contracts, is intended compensation for a
each, measured in the terms of the contract." Davis v. New England Cotton Yarn Co., 77 N. H.
403, 404, 92 A. 732, 733. The purpose of the law is "to put the plaintiff in as good a position as he
would have been in had the defendant kept his contract." 3 Williston Cont. § XXXXXXXXXXThe measure
of recovery "is based upon what the defendant should have given the plaintiff, not what the plaintiff
has given the defendant or otherwise expended." 3 Williston Cont. § 1341. "The only losses that
can be said fairly to come within the terms of a contract are such as the parties must have had in
mind when the contract was made, or such as they either knew or ought to have known would
probably result from a failure to comply with its terms." Davis v. New England Cotton Yarn Co.,
77 N. H. 403, 404, 92 A. 732, 733. . . .
The present case is closely analogous to one in which a machine is built for a certain
purpose and wa
anted to do certain work. In such cases, the usual rule of damages for
each of
wa
anty in the sale of chattels is applied, and it is held that the measure of damages is the
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difference between the value of the machine, if it had co
esponded with the wa
anty and its actual
value, together with such incidental losses as the parties knew, or ought to have known, would
probably result from a failure to comply with its terms. . . .
The rule thus applied is well settled in this state. "As a general rule, the measure of the
vendee's damages is the difference between the value of the goods as they would have been if the
wa
anty as to quality had been true, and the actual value at the time of the sale, including gains
prevented and losses sustained, and such other damages as could be reasonably anticipated by the
parties as likely to be caused by the vendor's failure to keep his agreement, and could not by
easonable care on the part of the vendee have been avoided." Union Bank v. Blanchard, 65 N. H.
21, 23, 18 A. 90, 91; . . . We therefore conclude that the true measure of the plaintiff's damage in
the present case is the difference between the value to him of a perfect hand or a good hand, such
as the jury found the defendant promised him, and the value of his hand in its present condition,
including any incidental consequences fairly within the contemplation of the parties when they
made their contract. 1 Sutherland, Damages (4th Ed.) § 92. Damages not thus limited, although
naturally resulting, are not to be given.
The extent of the plaintiff's suffering does not measure this difference in value. The pain
necessarily incident to a serious surgical operation was a part of the contribution which the plaintiff
was willing to make to his joint undertaking with the defendant to produce a good hand. It was a
legal detriment suffered by him which constituted a part of the consideration given by him for the
contract. It represented a part of the price which he was willing to pay for a good hand, but it
furnished no test of the value of a good hand or the difference between the value of the hand which
the defendant promised and the one which resulted from the operation.
It was also e
oneous and misleading to submit to the jury as a separate element of damage
any change for the worse in the condition of the plaintiff's hand resulting from the operation,
although this e
or was probably more prejudicial to the plaintiff than to the defendant. Any such
ill effect of the operation would be included under the true rule of damages set forth above, but
damages might properly