Hawkins v. McGee
SUPREME COURT OF NEW HAMPSHIRE
84 N.H. 114 (1929)
OPINION BY 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, in answer to the question, "How long will the boy be in the hospital?" replied, "Three or four days, not over four; then the boy 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 considered as expressions of opinion or predictions as to the probable duration of the treatment and plaintiff's resulting 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 warranty in accordance with his contention.
The defendant argues, however, that, even if those words were uttered by him, no reasonable 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, before 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 erroneously 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 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.
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 reasonably 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 erroneous.
"By `damages,' as that term is used in the law of contracts, is intended compensation for a breach, measured in the terms of the contract.". . . 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.". . . The 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.". . . "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.". . .
The present case is closely analogous to one in which a machine is built for a certain purpose and warranted to do certain work. In such cases, the usual rule of damages for breach of warranty in the sale of chattels is applied, and it is held that the measure of damages is the difference between the value of the machine, if it had corresponded with the warranty 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 warranty 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 reasonable care on the part of the vendee have been avoided." . . . 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 . . . Damages not thus limited, although normally 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 erroneous 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 error 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 be assessed for the defendant's failure to improve the condition of the hand, even if there were no evidence that its condition was made worse as a result of the operation.
It must be assumed that the trial court, in setting aside the verdict, undertook to apply the same rule of damages which he had previously given to the jury, and, since this rule was erroneous, it is unnecessary for us to consider whether there was any evidence to justify his finding that all damages awarded by the jury above $500 were excessive.
New trial.
These background facts of the case are provided by a student newspaper account in the Harvard Law School Record, March 17, 1978. George Hawkins had been burned on the hand at age eleven in 1920, in an accident resulting from faulty wiring in the electric lighting of his family's kitchen in Berlin, New Hampshire. After healing, the use of his hand was not noticeably impaired. He had, according to the memory of surviving members of his family in interview nearly sixty years later, a "pencil sized" scar on his right thumb and forefinger, and across the tissue separating them. The scar was noticed by the family physician, Dr. McGee, on a house call in 1924. For three years, Dr. McGee urged Hawkins and his parents to have a skin graft, stressing the socially uncomfortable character of a such a scar. The doctor provided significant assurance as to the outcome of the surgery (I will give the boy a whole hand, a new hand) and as to the consequences of the surgical procedure (three or four days in the hospital, followed by three or four days of outpatient recovery to full normal health with a hand good as new). The first set of assurances was upheld as contractual by the court of appeal, while the latter was not. Part of the Doctor's motive, it was suggested by the plaintiff attorney, was to experiment on skin graft techniques that he had witnessed but not previously performed. That was held to be the element of consideration in the ensuing trial proceeding. Hawkins finally consented (against advice obtained years earlier, from specialists in Montreal, that nothing useful further could be done for the hand), and surgery was undertaken in 1928.
The result was most horrid. When his mother beheld George in post-operative recovery, she fainted. Her son was lying, bleeding profusely, with his hand grafted to his chest. Bleeding continued intermittently throughout the remainder of his life. The wound became infected, and post-operative hospitalization was prolonged through three months. After the graft was released, the skin removed from his chest began to sprout hair on George's hand. Full use of the hand was never recovered, and George, a shy person in any event, dropped out of high school in mortification at its appearance. Further consultation with Montreal specialists resulted in the same advice: cut your losses, and do nothing further. A local Berlin attorney masterminded (or by blind luck mistakenly stipulated) the charge of breach of contract, instead of the more ordinary charge of tort through malpractice or negligence. Negligence might have been very difficult to prove in this case.
The trial court jury had awarded plaintiff $3,000 damages. The appeal court offered to let $500 stand, or otherwise a new trial would be set. After the new trial was ordered, the case settled for $1,400 and legal fees.