Wilson v. Blair

• Decision Date: 22 November 1922
• Docket Number: 4873.
• Citation: 211 P. 289,65 Mont. 155
• Parties: WILSON v. BLAIR.
• Court: Montana Supreme Court

211 P. 289

65 Mont. 155

WILSON v. BLAIR.

No. 4873.

Supreme Court of Montana

November 22, 1922

Commissioners' Opinion.

Appeal from District Court, Gallatin County; B. B. Law, Judge.

Action by Ralph W. Wilson against J. F. Blair. From judgment for plaintiff and from order overruling defendant's motion for a new trial, the defendant appeals. Reversed and remanded, with directions.

Farr J., dissenting in part.

W. S Hartman, of Bozeman, for appellant.

Miller O'Connor & Miller, of Livingston, for respondent.

LEIPER C.

Plaintiff's (respondent herein) second amended complaint sets forth two causes of action. Prior to the selection of the jury herein counsel for defendant (appellant herein) moved the court that the plaintiff be required to elect upon which of the causes of action said plaintiff would rely. This motion was granted, and plaintiff elected to stand upon the second cause of action. It is alleged therein that the defendant is a physician and surgeon, duly licensed to practice as such and practicing at Bozeman, Mont.; that the plaintiff is a jeweler, skilled in repairing watches, doing engraving work and manufacturing jewelry; that in June, 1919, plaintiff sustained an injury to the thumb of his left hand, which rendered the first joint thereof stiff; that thereafter plaintiff consulted with defendant concerning such injury, and for a valuable consideration to be paid defendant by plaintiff, defendant agreed to perform a surgical operation upon the said thumb and guaranteed that after such operation plaintiff's said hand would be 100 per cent. efficient; that such operation was performed, which resulted in further injury to the thumb and such injury to the whole hand as that plaintiff is unable to perform his usual work or to follow his vocation. Plaintiff prays damages in the sum of $15,000.

The answer admits that defendant is a physician and surgeon; that plaintiff sustained injury to the thumb of his left hand in June, 1919; admits that defendant was employed to perform a surgical operation on such thumb; that said operation was performed; and denies all of the other material allegations of the complaint.

The cause was tried to a jury. At the conclusion of the testimony for plaintiff defendant moved for a nonsuit, which motion was denied. Thereafter defendant offered testimony. The jury returned a verdict for the plaintiff in the sum of $5,000, and judgment was entered thereon. Defendant thereafter moved the court for a new trial, which was overruled. These appeals are from the judgment and from the order overruling defendant's motion for a new trial.

Under specifications of error numbered 1, 2, 4, and 5, the contention is made that the evidence is not sufficient to support the verdict; that the court erred in denying defendant's motion for a nonsuit, and in denying defendant's motion for a new trial; and that the verdict of the jury is against the law.

We will consider these four specifications of error together. In this action the plaintiff is relying upon a special contract alleged to have been entered into with defendant. The plaintiff asserts that under the terms of this contract the defendant agreed to perform an operation on plaintiff's left hand and warranted and guaranteed that the said hand would, as a result of such operation, be cured of all defects and made 100 per cent. efficient. To prevail the plaintiff must prove that there was an agreement enforceable at law, that defendant violated such agreement, and that damage resulted. It is admitted that an agreement was made to perform an operation and that such operation was performed, but it is specifically denied that there was any agreement either warranting or guaranteeing the result of such operation.

The jury were instructed, in part, as follows:

"The contract to cure counted upon in the complaint is a special contract which, by its terms, devolved upon the defendant a greater liability, responsibility, and duty than that devolved upon him by the law. To render it valid, there must have been a consideration for the contract, and without such consideration it was a mere gratuitous promise, upon which the plaintiff could not recover.

So if you find from the evidence that after plaintiff and defendant had agreed that defendant should perform the operation in question and what his compensation for the performance of the operation and subsequent treatment should be, defendant without other consideration passing to him, or paid or promised to him, stated that the result of the operation would be to make plaintiff's hand 100 per cent. efficient, and that he would so guarantee, or words to that effect, such promise and dependence upon it was without consideration and cannot be enforced here, and your verdict should be for the defendant.

You are instructed that if you find and believe from the evidence that the plaintiff promised to pay the defendant any sum of money in consideration of the defendant guaranteeing a cure, or a hand that would be 100 per cent. efficient as a result of the operation, that such promise to pay is a good and valuable consideration, even though the said promise was not carried out by the plaintiff."

No objection was made to the giving of these instructions, and they became the law of the case. Daniels v. Granite Bi-Metallic Co., 56 Mont. 284, 184 P. 836; 14 R. C. L. 822; Schmidt v. Carpenter, 27 S.D. 412, 131 N.W. 723, Ann. Cas. 1913D, 296 and note.

In order to clearly understand the nature of the transactions between the plaintiff and defendant, it becomes necessary to recapitulate a part of the testimony had upon the trial hereof. As hereinbefore noted, the defendant offered testimony; but this did not in any wise strengthen the plaintiff's case. The defendant denies emphatically that any agreement was made between plaintiff and defendant, except that defendant was to perform the operation on plaintiff's left hand, and plaintiff was to pay not less than $25 nor more than $50 therefor. The plaintiff himself and one Ginn, who is an uncle of plaintiff, were the only witnesses who gave testimony in plaintiff's behalf. From plaintiff's testimony it appears that he follows the trade or vocation of a watchmaker and engraver; that in the latter part of June, 1919, the plaintiff, while engaged in doing engraving work, sustained an injury to the thumb of his left hand, whereby the tendons thereof were severed, as a result of which the first joint of the thumb became stiff, and the plaintiff was thereby rendered less capable of performing the work required of him in his vocation. It further appears that about six weeks after sustaining this injury, plaintiff met defendant in defendant's garage, where the conversation occurred between plaintiff and defendant out of which the alleged agreement upon which this action is based grew. Plaintiff testified that he showed his thumb to defendant, at the same time telling defendant of the accident which had befallen him, and asked defendant what was wrong with the thumb; that defendant replied that the tendons had been severed; that it could be fixed by a very simple operation, explaining at the same time the general nature of the operation. Plaintiff then suggested that the operation be performed without administering an anæsthetic, but defendant advised against the performance of the operation without first administering an anæsthetic.

Continuing on direct examination, the plaintiff testified:

"I asked him if he was sure that that operation, as he described it to me, would make my hand as good as it ever was. And he said, 'Yes,' he says, 'I'll guarantee that your hand will be in--first he guaranteed it to me three different times. The first guaranty was, 'Yes, I'll guarantee your hand will be a hundred per cent. efficient,' and I told him of course-- Q. What did he say when he said he'd guarantee it to be a hundred per cent. efficient? A. He said that it would be as good as it was before I had the tendon cut. Q. I understand, but what words did he use that led you to believe that he guaranteed it? A. Well, he said those words. Q. Said what words? A. He said, 'I'll guarantee that your hand will be a hundred per cent. efficient after the operation.' Q. Following the operation which he proposed? A. Yes, sir. Q. Did you make any promise to the doctor, at the time he said he would guarantee it to be a hundred per cent. efficient at the time of the operation, about paying him for such work? A. Well, I inquired how much the charge for that operation would be, and he said he thought it would be about $25. But he said he would state it would be between $25 and $50. That is, outside of the hospital bill. Q. Did you promise to pay that? A. Yes, sir; I did. Q. That is when he guaranteed to make your hand 100 per cent, efficient, you promised to pay him whatever his charges were? A. Yes, sir; I did. Q. Now, did you believe that Dr. Blair when he said that he could make your hand a hundred per cent. efficient by this operation? A. Yes, sir; I did, or I never would have had the operation. Q. Did you act and rely upon what the doctor said when he said he'd guarantee a cure of the hand by permitting him to operate? A. Yes, sir; I did. Q. Would you have had the operation performed had you not believed, acted, and relied upon what the doctor told you with reference to this operation? A. No, sir; I would not, absolutely not. Q. Well, you told the court and jury a few moments ago that the doctor guaranteed this two or three different times? A. Yes, sir."

The plaintiff on his direct examination then detailed what was done in performing the operation, its results, and the damage which followed. On cross-examination, the plaintiff testified, in part, as follows:

"I first said

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