Ladd v. Witte

• Decision Date: 28 November 1902
• Parties: LADD v. WITTE.
• Court: Wisconsin Supreme Court

116 Wis. 35

92 N.W. 365

LADD

v.WITTE.

Supreme Court of Wisconsin.

Nov. 28, 1902.

Appeal from superior court, Milwaukee county; O. T. Williams, Judge.

Action by G. D. Ladd against Otto Witte. From a judgment granting insufficient relief to plaintiff, he appeals. Reversed.

Plaintiff, a physician and surgeon, brought this action in justice court to recover for services in performing an operation upon the defendant's newly-born imperfect child, alleging such services to be reasonably worth $50. After judgment in favor of the defendant, and appeal by plaintiff to the superior court, he was permitted to amend “so as to make his claim $100 and interest.” Defendant was permitted to amend his answer by adding a counterclaim for $5,000, based on allegation of representations by plaintiff that operation was necessary and would succeed; that in fact it was unnecessary and improper; and that by reason thereof, and of plaintiff's neglect to properly care for the child thereafter, death resulted. The defensive part of the answer was a general denial, and the assertion that the plaintiff promised and agreed to perform a successful operation, but did perform it in such negligent and careless manner that the child immediately died. After the completion of the evidence in superior court it was ruled that there was no evidence to support the counterclaim, nor to prove any defense to plaintiff's cause of action; whereupon the amount thereof was submitted to the jury, who returned a verdict of $35. A motion to set aside the same and for new trial was made by the plaintiff on the ground of inadequacy of the amount, and for errors in admission of evidence and in instructing the jury, which being overruled, judgment was entered in plaintiff's favor for the amount found, with costs, from which plaintiff brings this appeal.J. A. Eggen, for appellant.

Doerfler, McElroy & Eschweiler, for respondent.

DODGE, J. (after stating the facts).

The respondent objects to the jurisdiction of this court by reason of a failure of jurisdiction in the circuit court over the appeal from the justice of the peace. The objection is that such appeal was ineffectual because of the affidavit of good faith, which was in the following words: “G. D. Ladd, the above-named plaintiff and appellant, being duly sworn, on oath says that the appeal in the above-entitled action is made in good faith, and not for the purpose of delay, and that he is the defendant above named.” That affidavit was signed and sworn to by Mr. Ladd, the appellant. The objection is without force. The statute (section 3754, Rev. St. 1898) requires merely that the appellant, or some person authorized by him, must file with the notice an affidavit that the appeal is made in good faith, and not for delay. That Ladd was the appellant appeared beyond doubt or controversy from the entire record. The statement that he was defendant was mere surplusage (Nett v. Serwe, 28 Wis. 663), and could not serve to neutralize or render ineffective the otherwise complete and sufficient affidavit.

The first error assigned is in permitting the defendant to amend answer by adding the counterclaim. We discover no error in this ruling; certainly not to the extent of abuse of the discretion vested in the trial court. The counterclaim arose out of the same transaction as did the cause of action stated in the complaint, and, under section 2656, Rev. St. 1898, was properly pleadable. In any event, however, such ruling cannot have affected the judgment prejudicially to the plaintiff, for at the close of the evidence the court withdrew the counterclaim from the jury, and directed them not to consider the same or allow anything thereon.

2. Plaintiff assigns as error the giving of several instructions to the jury, namely:

(a) “If you find * * * that the plaintiff, * * * as an inducement to be permitted to perform the operation for the defendant, assured or guarantied relief or the recovery of the infant from that operation, and that the defendant relied upon such statement, * * * you may take those facts and circumstances into consideration in determining the value of the services.” This instruction evinces such confusion of ideas as is sometimes ascribed to juries, but seems hardly possible to the judicial mind. The slightest reflection makes apparent that the only effect of breach of either a fraudulent or innocent warranty inducing the making of a contract of employment and payment quantum meruit is to defeat any recovery whatever thereon, except where made the basis of recoupment or counterclaim against an agreed price. It could have no possible effect to make either greater or less the actual market value of the service in fact performed. The court had already decided that there was no proof of either broken warranty or unskillfulness and negligence to defeat recovery quantum meruit, and that the only question for the jury was the reasonable value--i. e., customary price--for performing the operation. The quoted instruction invited the jury into that field of meretricious compromise of convictions for damages authorizing them to commute a doubt as to plaintiff's right of recovery into a diminution of the amount to which he had absolute legal right, if he recovered at all. If this instruction guided the jury at all, it necessarily guided them to injustice,--to awarding an amount other than the true reasonable value of the service rendered by plaintiff. Prejudicial error therein is obvious.

(b) “In case you should be of the opinion that the services of the plaintiff were of value to the defendant, you must determine the value of such services, under all the credible evidence in the case, at any amount up to the amount of $100.00.” While the direction to determine the value of the service upon all the evidence is correct, and is unassailed, appellant complains of the expression, “at any amount up to the amount of $100.00,” as indicating to the jury that there existed evidence to justify any sum between zero and $100; while, as he contends, there was no evidence to support any finding less than $50. We think the instruction not necessarily obnoxious to this criticism. The court may be understood to mean any amount having support from evidence, and, so construed, the duty of the jury was accurately expressed. A cautionary phrase to such effect might well have been added to assure a right understanding by the jury, but we cannot think its omission reversible error. The hypothesis on which this instruction is predicated, viz., “in case you should be of the opinion that the services of the plaintiff were of value to ...