Hawkins v. McGee

Decision Date04 June 1929
Citation146 A. 641
PartiesHAWKINS v. McGEE.
CourtNew Hampshire Supreme Court

Transferred from Superior Court, Coos County; Scammon, Judge.

Action by George Hawkins against Edward R. B. McGee. Verdict for plaintiff, which was set aside. Transferred on exceptions. New trial.

Assumpsit against a surgeon for breach of an alleged warranty 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 transferred by Scammon, J. The facts are stated in the opinion.

Ovide J. Coulombe and Ira W. Thayer, both of Berlin, for plaintiff.

Matthew J. Ryan and Crawford D. Henlng, both of Berlin, for defendant.

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 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 construed 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 these 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 ease 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 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 aDove 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 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." 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. § 1338; ...

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38 cases
  • East River Steamship Corp v. Transamerica Delaval, Inc
    • United States
    • U.S. Supreme Court
    • June 16, 1986
    ... ... 9 See Hawkins v. McGee, 84 N.H. 114, 146 A. 641 ... Page 874 ... (1929). Thus, both the nature of the injury and the resulting damages indicate it is more ... ...
  • Sard v. Hardy
    • United States
    • Court of Special Appeals of Maryland
    • December 21, 1976
    ...& Surgeons § 105.35 Crawford v. Duncan, 61 Cal.App. 647, 215 P. 573, 574 (1923); Guilmet, supra, 188 N.W.2d at 606; Hawkins v. McGee, 84 N.H. 114, 146 A. 641, 643 (1929). See Perin v. Hayne, 210 N.W.2d 609, 616 (Iowa 1973).36 See n. 2 above.37 See n. 3 ...
  • Jackson v. Bumgardner
    • United States
    • North Carolina Supreme Court
    • August 29, 1986
    ...conception" claims. See Minn.Stat.Ann. § 145.124 (Supp.1986).4 The classic example of such a contract is found in Hawkins v. McGee, 84 N.H. 114, 146 A. 641 (1929) ("Hairy Hand" case) (doctor warranted to give patient a "perfect hand" as the result of a skin ...
  • Smith v. Cote
    • United States
    • New Hampshire Supreme Court
    • July 9, 1986
    ...also receive what was to be obtained for the price." McQuaid v. Michou, 85 N.H. 299, 303, 157 A. 881, 883 (1932). See Hawkins v. McGee, 84 N.H. 114, 146 A. 641 (1929). We note that expectancy damages are recoverable in other kinds of tort cases, see Wilson v. Came, 116 N.H. 628, 630, 366 A.......
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8 books & journal articles
  • Toward a Theory of Medical Malpractice
    • United States
    • Iowa Law Review No. 97-4, May 2012
    • May 1, 2012
    ...physician’s treatment duties above the customary level. See generally Sullivan v. O’Connor, 296 N.E.2d 183 (Mass. 1973); Hawkins v. McGee, 146 A. 641 (N.H. 1929). Contracts purporting to take this duty below that level or to reduce doctors’ responsibility for malpractice are not enforceable......
  • Loss-of-chance Doctrine in Washington: from Herskovits to Mohr and the Need for Clarification
    • United States
    • University of Washington School of Law University of Washington Law Review No. 89-2, December 2019
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    ...injury and the ultimate outcome). 185. Id. 186. 890 N.E. 2d 819 (Mass. 2008). 187. Id. at 833. 188. See, e.g., Hawkins v. McGee, 146 A. 641 (N.H. 1929) (holding that the court had to determine the value of a 100% perfect hand). 189. Mohr, 172 Wash. 2d at 858-59, 262 P.3d at 496-97. 190. Her......
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    • Emory University School of Law Emory Law Journal No. 59-6, 2010
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    ...Labs., Inc., 734 A.2d 1245, 1257 (N.J. 1999). 336 Shultz, supra note 153, at 264. 337 Id. at 264-65. 338 Id. (citing Hawkins v. McGee, 146 A. 641 (N.H. 1929)). 339 Cf. Shoda et al., supra note 19, at 5 (arguing that "when there is no 'right' medical recommendation, the decision needs to be ......
  • The sacred and profane contracts machine: the complex morality of contract law in action.
    • United States
    • Suffolk University Law Review Vol. 45 No. 3, June 2012
    • June 22, 2012
    ...enhance value for both parties). (42.) Hamer v. Sidway, 27 N.E. 256 (N.Y. 1891); Balfour v. Balfour, [1919] 2 K.B. 571; Hawkins v. McGee, 146 A. 641 (N.H. (43.) When laying out his theory, Fried uses examples involving "I" making promises to "you." Fried, supra note 2, at 8-21. This stylist......
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