McQuaid v. Michou

• Decision Date: 04 January 1932
• Citation: 157 A. 881
• Parties: McQUAID v. MICHOU.
• Court: New Hampshire Supreme Court

157 A. 881

McQUAID

v. MICHOU.

Supreme Court of New Hampshire. Hillsborough.

Jan. 4, 1932.

Instruction was in substance that value of plaintiff's condition, if cured, over and above value of her actual condition should be estimated, including incidental consequences to be expected and attributable to treatment and disease, that such suffering and inconvenience as resulted from and was naturally incidental to treatment were not elements of damage, but that pain and suffering resulting from disease itself as well as results of plaintiff's present condition or any condition which had been created by treatment might be considered.

Transferred from Superior Court, Hillsborough County; Young, Judge.

Action of assumpsit by Mary McQuaid against Nicholas Michou for breach of contract to cure the plaintiff of a disease. On a jury trial plaintiff received a verdict. Case transferred from trial term on defendant's exceptions to the denial of a plea in bar, of his motion for a directed verdict, and of requests for instructions, as well as to evidence, argument, and the charge. The exceptions and the facts pertinent to them are set forth in the opinion.

New trial.

Hurley & Connor, of Manchester, for plaintiff.

Timothy F. O'Connor and Myer Saidel, both of Manchester, for defendant.

ALLEN, J.

I. In a prior suit between the parties, the plaintiff charged the defendant with negligence in his performance of the contract to effect a cure, for breach of which this action is brought, and the defendant prevailed therein. It is claimed, for various reasons, that this action was thereby barred. None of the reasons appear sufficient.

It is argued that the promise to cure was an issue determined in the prior suit. While it may have been an issue, it was only a collateral one, not essential as an element of the cause of action. It was not matter to be pleaded (Chesley v. Dunklee, 77 N. H. 263, 90 A. 965), and hence any finding on the issue was not res adjudicata. The prior suit was for improper treatment. This action is for failure of a promised result of treatment. The plaintiff's failure to prove malpractice in the prior suit does not perforce disprove the promise to cure. If in that suit evidence of the promise to cure became relevant and was received, merger or identity of the actions does not follow. Duplication of the evidence in them does not make them the same, or show that they are not separable and based on distinct grounds of liability. It is true that the defendant's conduct which was under test in the prior suit is again considered in this action. But his liability in this action depends, not upon the character of his conduct, but upon his agreement for its results. How he acted is now only of collateral bearing, while in the prior suit it was only of collateral bearing what he agreed to do. The verdict in the prior suit shows that the defendant's treatment of the plaintiff was proper and skillful, but it does not show what bis undertaking was as to the outcome of the treatment.

There is not here a case of election between inconsistent remedies for rights growing out of a single transaction. When the claim is of new and distinct impression, and does not result in a change of position producing a conflict with a prior claim, there is no estoppel to bar it. Gehlen v. Patterson, 83 N. H. 328, 330, 331, 141 A. 914.

The claim of improper treatment was not an election barring a claim of proper treatment barren of agreed results. Wihile the plaintiff in this action may not find fault with the treatment she received, she may say that it did not do for her what was promised. The prior action establishes no estoppel against this one because remedy for unskillful treatment is compatible with remedy for unsuccessful treatment. If the defendant had promised to pay the plaintiff a stipulated amount if he did not cure her, the defense that he had used due care and skill would be of no avail. And the contract here falls short of such a promise only in its deficiency of provision for liquidated damages. The remedies are cumulative, and not alternative.

It may be that, if the prior suit had been generally for breach of the contract of service, all issues litigable in it would be settled. Chesley v. Dunklee, supra. But the prior action was limited to a claim of negligence. If the negligence is regarded as a breach of the contract, it is a distinct item of breach. While the outcome of the suit barred a later action for that breach, it did not bar one for failure of other terms of the contract. The election to sue in tort instead of on the contract was effective to bar later action on the contract for its breach in committing the tort, but not to bar action for other breaches. Different liabilities under a contract or as its outgrowth may give rights to separate actions when the liabilities are not alternative. Robinson v. Crowninsbield, 1 N. H. 76; Moulton v. Libbey, 15 N. H. 480; Perham v. Lane, 76 N. H. 580, 83 A. 805.

II. Upon the exception to the refusal of a directed verdict, the evidence is said to show the mutual understanding of the parties that a cure was impossible. Without considering in this connection the effect of such an understanding, the evidence of it is not at all conclusive. The plaintiff testified to her belief that the promise of a cure would be fulfilled and that she took the treatment the defendant gave her in reliance and faith upon it. This testimony being adopted, it is not Important that the defendant believed or knew there was no chance of a cure. If he agreed to cure, and the plaintiff thought he would, he is held, although he knew he could not.

Further claim is made that it was the plaintiff's fault that she did not take the full treatment, and that, as the defendant's promise was dependent upon it, she committed a substantia] breach of her part of the contract. The evidence authorized a conclusion that she did not complete the treatment because it affected her health too seriously. To meet this, the point is taken that the verdict in the prior suit determined this issue of her fault against her. The point is defective. The verdict in the prior suit exonerated the defendant from blame for the treatment, but it did not show the plaintiff to be in fault for the results of the treatment. Responsibility for the results was not necessarily hers merely because it was not the defendant's. The issue of her fault must be regarded as unconcluded by the prior suit, and the situation now is that, although the defendant's treatment was not wrongful, yet it was so severe in its effects that the plaintiff was justified in refusing to go on with it.

Moreover, the defendant testified that he knew the plaintiff's disease was incurable when he undertook to treat her; it being his position that he agreed only to help and better her condition. Since he admits that the full treatment would not cure, he may not rely on a term of the engagement full performance of which by the plaintiff would still leave his promise to cure unfulfilled. The treatment having no curing efficacy, the plaintiff's refusal to go on with it cannot be regarded as a breach of such importance as to justify the defendant in rescinding the contract or to relieve him from further liability thereon.

Argument is advanced that contracts to cure are against public policy. The reason suggested is that their enforcement tends to dissuade a doctor from encouraging his patients and giving them hope as an important aid to their improvement or recovery, in the fear that his words will be taken as a promise. The line between a promise and an opinion is not so narrow and shadowy that language may not be well chosen to express one in clear distinction from the other, and it is a simple matter for a doctor to make it definite that he guarantees no good results. Moreover, if the promise were held illegal, a patient ignorant of its illegality would be misled-in placing reliance on it, while, if he were aware of its lack of binding force, his knowledge would tend to prevent confidence in it, and the gain of freedom of statement would be lost in its known irresponsibility. The proposed policy is not perceived to have any healing value sufficient to demand its adoption.

III. The defendant excepted to evidence, the charge, and the denial of requested instructions, in relation to damages. The exceptions may be considered together as presenting generally the issue how far the ill effects, both physical and pecuniary, sustained by the plaintiff from the treatment are an element of damage.

The rule of damages in such cases as this is expounded in Hawkins v. McGee, 84 N. H. 114, 146 A. 641. It gives as compensation only the difference between the values of the condition promised and the actual condition, including incidental consequences fairly subject to contemplation by the parties when the contract is made. As the case holds, a plaintiff's suffering incident to treatment does not enter...