HAWKINS v. McGEE

84 N.H. 114, 146 A. 641 (1929)

Parties: Plaintiff: Hawkins (injured minor) (P)

Defendant: McGee (surgeon) (D)

Relief Requested: Suit for breach of contract and warranty of success of an operation that (D) performed on (P)’s hand.

Legal Theory: Theory of contracts; Money Damages.

Procedural History: Jury trial awarded (P) $3,000. (D)’s request for directed verdict on breach of warranty was denied. (D) moved to set aside verdict on grounds that it was (1) contrary to the evidence; (2) against weight of the evidence; (3) against the weight of the law and evidence; and (4) damages awarded by jury were excessive. Court denied grounds 1-3 but found damages were excessive. Court ordered verdict to be set aside unless (P) elected to remit all in excess of $500. (P) refused.

Facts: Nine years before this action, (P)’s right hand was severely burned when it came into contact with an electric wire. (D), a surgeon repeatedly solicited approval from (P)’s father to perform an operation and to experiment a skin grafting, in which he had little prior experience. (P) and his father visited (D) prior to deciding on the operation which consisted of the removal of scar tissue from (P)’s right palm and grafting of skin from his chest onto his palm. During this visit (D) told them that he would “guarantee to make the hand a hundred per cent perfect hand or a hundred per cent good hand” (instead tissue grafted became matted, unsightly and growth restricted motion of hand rendering it useless). (D) argued that this was a mere expression that he believed and expected good results from the operation. However, court found this statement to constitute a warranty because it induced (P)’s consent to the operation. (P) claimed that (D) also told them (P) would remain in the hospital not more than four days (he remained more than three months) and could be back to work in just a few days.

Issue: Was jury instruction regarding damages erroneous?

Holding: Yes. The jury instruction to consider two elements of damage: (1) Pain and suffering due to the operation; and (2) positive ill effects of the operation upon the (P)’s hand was erroneous. New Trial ordered.

Reasoning: The court analogized this case to one in which a machine is built for a certain purpose and warranted to do certain work. The rule of damages for breach of warranty in these cases involving chattels it is held that the measure of damages is the difference between the value of the machine, if it had corresponded with the warranty and its actual value. Therefore, applying this analogy to the case at hand (no pun intended), the court held that the correct measure of (P)’s damages was the difference between the value of a perfect hand and the value of his hand in the present condition. Pain and suffering due to the operation should not have been part of the instruction. Pain was legal detriment suffered by (P) in consideration for the contract. “It was part of the price which he was willing to pay for a good hand”.