Carpenter v. Moore, 33936
| Decision Date | 27 February 1958 |
| Docket Number | No. 33936,33936 |
| Citation | 51 Wn.2d 795,322 P.2d 125 |
| Parties | John K. CARPENTER and Mrs. John K. Carpenter, husband and wife, Respondents, v. Kenneth MOORE and Mrs. Kenneth Moore, husband and wife, Appellants. |
| Court | Washington Supreme Court |
John D. MacGillivray, Willard W. Jones, Spokane, for appellants.
Carl Maxey, Spokane, for respondent.
Quaere: What should be the recovery in an action by a patient against a dentist for the breach of a contract to make upper and lower partial plates to the patient's complete satisfaction; there being no proof of negligence or of any fault on the part of the dentist, except that he failed to satisfy his patient, and the only damages found by the trial court being seven hundred and fifty dollars for pain and suffering, and the four hundred dollars paid for the partial plates?
Answer: The amount of the consideration paid by the patient for the work, which the dentist had contracted to do to her satisfaction. This would exclude the damages for pain and suffering.
Reasons for the Answer: The narrow limits of the breach of contract, with which we are concerned, must be kept in mind. Claimed breaches of a contract to do firstclass, skillful, competent, and careful work were not established. Had the breach of contract involved any of the usual elements in a malpractice action, negligence, lack of skill, incompetence, or want of care, it might well be argued that the pain and suffering resulting therefrom were within the contemplation of the parties, as was the case in Reeves v. Wilson, 1919, 105 Wash. 318, 177 P. 825. (This is not the unusual case where the unsatisfactory result is in itself some evidence of negligence, as in Olson v. Weitz, 1950, 37 Wash.2d 70, 221 P.2d 537, and the cases therein cited.)
Purists may be concerned as to whether the breach with which we are here concerned is of a warranty or a guaranty. We shall follow the example of the parties and refer to a guaranty or guaranties, which seems to be justified by common usage.
The trial court found that only one of the claimed guaranties had been breached, i. e., that the patient would be satisfied. If that guaranty had not been made to the patient, there could have been no recovery. (It should be noted that Dr. Moore denied making such a guaranty; however, the testimony of a patient or client that a guaranty was made is sufficient to take the question of the existence of such a contract to a jury, or to support a finding by a trial court.)
The general rule is that for a breach of contract the injured party should be allowed to recover any damages that might have been within the contemplation of the parties as a probable result of the breach. Foss v. Pacific Tel. & Tel. Co., 1946, 26 Wash.2d 92, 173 P.2d 144.
The amount paid, or promised to be paid, is the consideration for the promise of the professional man that the patient or client will be satisfied with his work. Wilson v. Blair, 1922, 65 Mont. 155, 211 P. 289, 27 A.L.R. 1235. Having made such a promise, he must, in the event of a breach of the promise on his part, contemplate the loss of the consideration, and the patient or client is entitled to recover the amount paid for the services which are unsatisfactory. Frankel v. Wolper, 1918, 181 App.Div. 485, 169 N.Y.S. 15. However, damages for pain and suffering, ordinarily predicated on negligence or malpractice, are not within the contemplation of the parties for the breach of a promise to do work to the satisfaction of a patient or client in the absence of some negligence or fault. Frankel v. Wolper, supra.
The Facts Which Raise the Issues: Unless otherwise indicated, our statement of the facts is taken from the findings made by the trial court. Many of these findings are challenged by the defendants as appellants in this court. They are made on sharply conflicting testimony, particularly with reference to the making of any guaranty; but we are unable to say that the evidence preponderates against these findings.
The defendant, Dr. Kenneth Moore, a dentist, agreed to make partial upper and lower plates for the plaintiff, Mrs. John K. Carpenter, and he expressly guaranteed that all of the work would be done to her satisfaction. He expressly guaranteed that he would adjust any work done, or repair such work as might be necessary in the event any of the work should prove unsatisfactory or that was done in an unskillful, incompetent, or careless manner, or do over such work that might have been improperly performed. (There was no evidence of unskillful, incompetent, careless work, or improper performance.)
The making of these partial plates and other dental work--which involved cleaning the mouth of pyorrhea, the pulling of certain teeth, and the filling of others--was to be done at a cost of $517, of which $400 was to be the cost of the partial plates.
The upper and lower partial plates did not fit properly, were not properly adjusted, slipped about in the mouth of Mrs. Carpenter, and were painful and uncomfortable. She could not eat with them and they provided no utility whatsoever to her. They caused growths to appear in the area of the left cheek that had to be removed by a surgeon; said growths having been caused by the constant biting of the cheek. The plates also caused discoloration and pigmentation.
The specific finding, on which liability must be predicated, is that Dr. Moore breached his contract with the Carpenters in failing to perform his work to the satisfaction of Mrs. Carpenter, and that her dissatisfaction was real and not feigned.
The finding on damages was that Mrs. Carpenter had experienced pain and suffering from the dentist's breach of guaranty of her satisfaction in the sum of $750 and a special damage of $400. It is from the judgment of $1,150 , based on these findings, that Dr. Moore and his wife appeal.
Contentions of the Appellants Which are Found to be Without Merit, or if With Merit, to be Without Prejudice: It is urged that the plaintiffs should have been compelled to elect whether they were suing for damages for a tort or a breach of contract, and that the case should have been dismissed because no tort was established. The complaint and demand for the admission of facts do indicate that plaintiffs' claim for damages was predicated upon the incompetent, unskillful, and negligent performance of work by Dr. Moore.
The plaintiffs failed to prove negligence or malpractice, or any breach of the dentist's agreement to do careful, competent, and skillful work, but their evidence did establish an agreement to do satisfactory work for Mrs. Carpenter, and the breach thereof. The trial court announced at the conclusion of the plaintiffs' case that the pleadings were amended to conform to the proof.
The issues in this case might have been narrowed before trial, instead of at the close of the plaintiffs' case. Confusion could have been eliminated, and the time of trial materially shortened by a pretrial conference; but we do not see that the defendants were in any way prejudiced, or denied any opportunity to meet what ultimately proved to be the decisive issues in the case, i. e., was there an agreement to do work satisfactory to Mrs. Carpenter, and was that agreement breached?
Complaint is made that an exhibit and certain testimony were excluded. Neither the exhibit nor the testimony had any bearing on the decisive issues and hence there was no prejudice. W. W. Kimball Co. v. Cockrell, 1900, 23 Wash. 529, 533, 63 P. 228.
The contention of the defendants that the determination of whether a party was satisfied should not be purely subjective or arbitrary, need not be considered, because there is a finding, and evidence in support thereof, that the dissatisfaction was real and not feigned.
Disposition of the Case: Judgment modified. Special damages in the amount of $400 are approved; and the item of $750 for pain and suffering will be deleted from the judgment. A new judgment will be entered in the amount of $400 and costs in the superior court. Neither party will recover costs on this appeal.
In this day of substantially enlightened legal reforms, it has been said with considerable critical discernment by the British legal historian, Maitland, that the common-law forms of actions are dead, but that 'they rule us from their graves.'
Potentially, Maitland's thesis has a bearing on three questions presented in this case: (1) Whether plaintiffs had to elect to sue and had to maintain their action strictly either as one ex contractu or as one ex delicto; (2) whether plaintiffs' evidence herein is such that it may be said that a good cause of action in contract was established; (3) whether damages for pain and suffering, normally a measure of damages applicable in actions which are characterized as ex delicto, may be applied under the facts herein in this action which is characterized as ex contractu.
By holding that the cause of action is good, and by imposing legal liability sounding in contract in the instant case, the majority opinion laconically presents a modern answer to the first two questions. Avoided are atypical post-mortem influences wielded oftentimes unrealistically and unnecessarily by the old common-law forms of action or their vestigial remains. With this I agree; however, the voices from the grave are subtle. I fear and believe that the majority succumbs thereto in answering the third question: denying damages for pain and suffering. With this I disagree.
Article I, § 32, of our state constitution provides 'A frequent recurrence to fundamental principles is essential to the security of individual right and the perpetuity of free government.'
RCW 4.04.020 [cf. Code 1881, § 2; Rem.Rev.Stat. § 153], which, incidentally, is not a recent innovation, provides:
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