211 P. 289 | Mont. | 1922
Lead Opinion
prepared the opinion for the court.
Plaintiff’s (respondent herein) second amended complaint sets forth two causes of action. Prior to the selection of the jury, counsel for defendant (appellant herein) moved the court that the plaintiff be required to elect upon which of the causes of action 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, Montana; 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 plain
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
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 Pac. 836; 14 R. C. L. 822; Schmidt v. Carpenter, 27 S. D. 412, Ann. Cas. 1913D, 296 and note, 131 N. W. 723.)
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 testi
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
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 something about what it would cost to have the operation. I asked him about how much it would cost me to have it done, and he said that it would cost me about $25. Well, he said he thought it
At this point in the cross-examination, court adjourned for the day, and upon the reconvening of court on the morning of the following day the plaintiff, on cross-examination, testified further: “Q. I’m asking you if you can give us the language of the third guaranty. A. Well, having thought the matter over, Dr. Blair made his guaranty—after my first conversation, after I had agreed to pay him either the $25 or $50, how much it—what his fee would amount to—he guaranteed that my hand would be 100 per cent efficient. Q. Will you kindly give us the language that Dr. Blair used and the circumstances under which he used it at the making of the third guaranty. Yesterday you gave us the language and facts with reference to the first and second; now, please give us the language and circumstances surrounding the third guaranty. A. Well, I. wish to state that I admit you kind of got me mixed up yesterday, and the only guaranty Dr. Blair made was after I had agreed to pay him; then he guaranteed that my hand would be a hundred per cent efficient after he’d performed the operation. Q. Now, having thought it over and found out where you’re at, what was the language and circumstances of this guaranty that you’re telling us about now? A. When I showed him my hand and described the nature of my case and I had asked him whether it could be fixed or not, he said it would be a very simple operation. Then I asked him how much it would cost to have it done, and he told me that it would be $25, but he was sure it would not be more than $50, and so I agreed to pay him that bill. Then I asked him if he was sure it would make
There is other testimony by the plaintiff, but the foregoing is substantially all of plaintiff’s testimony which bears upon this phase of the matter. Witness Ginn testified: That he was present at the time of the conversation covered by plaintiff’s testimony; that the defendant said that it was a simple operation; that Mr. Wilson asked him when he showed him this, and asked him about operating on it, and he asked him about what an operation like that would cost, and he said from $25 to $50. Then Mr. Wilson asked him if he thought he could guarantee him a good job, a hundred per cent job. Tie said, “Yes, you can use it just the same as you did before i't was hurt,” after this cord, was sewed up. “Q. Now, will you answer the .question, Mr. Ginn: Did the doctor at that time say anything else about guaranteeing a hundred per cent efficient hand? A. Why, after Mr. Wilson told him about when he’d pay him, he told him he’d guarantee him a hundred per cent job of it. Then Wilson asked what it would cost, and the doctor said it would cost him from $25 to $50, which would cover his fees for the operation. For all I knew, Dr. Blair only agreed that the $25 or $50 was to be for operating on his hand—putting it so that he could use it again. Q. Was it your understanding that Dr. Blair was to be paid from $25 to $50 for all the services he was to perform? A. To put the thumb in perfect shape. Q. Did you hear Dr. Blair use the word ‘guaranty’ in connection with perfecting a cure? A] Yes, sir; he guaranteed a first-class job. Q. You heard that word used by the doctor? A. Yes, sir. Q. What was the ’ language that the doctor used, just what was said, and how did he happen to say it? A. What? Q. You say he guaranteed it to be a first-class job; what was the language he used? A. What was the language? Q. Yes, what did Dr. Blair say, and how did he happen to say it from which you say he guaranteed it to be a first-class job?
The question presented is: Was there an agreement between plaintiff and defendant, enforceable at law, by which the latter guaranteed and warranted that as a result of such operation the plaintiff’s hand would be cured of all defects and rendered 100 per cent efficients If the contract in question was merely that, defendant was to perform a surgical operation, then the law requires that defendant possess the skill and learning which are possessed by the average member of the medical profession in good standing in the community in which he resides, and to apply that skill and learning with ordinary and reasonable care. He does not become a guarantor of the results of such operation. (Loudon v. Scott, 58 Mont. 645, 12 A. L. R. 1487, 194 Pac. 488; Hansen v. Pock, 57 Mont. 51, 187 Pac. 282; MacKenzie v. Carman, 103 App. Div. 246, 92 N. Y. Supp. 1063.)
It is plaintiff’s contention, however, that the defendant entered into a special contract with plaintiff, under the terms of which the defendant increased his responsibility by guaranteeing the results of the operation to be performed. In order that such special contract be valid, or to make it enforceable at law, it must be supported by a consideration. “The rule that consideration is essential to the enforcement of a simple contract is so thoroughly settled that it may be regarded as one of the elementary principles of the law of contracts.” (6 R. C. L. 650.) The trial court very aptly stated this rule in the instructions given to the jury and hereinbefore noted. Our statute defines “consideration” as follows: “Any benefit conferred, or agreed to be conferred, upon the promisor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a promise.” (Sec. 7503, Rev. Codes 1921.) The consideration must be either
The record discloses that upon the day of the trial of this cause, plaintiff on direct examination testified that defendant had guaranteed the results of this operation three different times. Upon cross-examination on the same day, the plaintiff stated the language used by the defendant in the first and second guaranties, and was asked by defendant’s counsel the language used by the defendant in making the third guaranty, but stated that he could not recall it at that time. At this point in the cross-examination, the court recessed for the day. Upon court reconvening on the following day, the second question asked the plaintiff was, “I am asking you if you can give us the language of the third guaranty?” to which the plaintiff made answer: “Well, having thought the matter over, Dr. Blair made his guaranty—after my first conversation, after I had agreed to pay him either the $25 or $50, how much it—what his fee would amount to—he guaranteed that my hand.would be 100 per cent efficient.”
The third question asked was: ‘ ‘ Will you kindly give us the language that Dr. Blair used and the circumstances under which he used it at the making of the third guaranty? Yesterday you gave us the language and facts with reference to the first and second; now, please give us the language and circumstances surrounding the third guaranty,” to which plaintiff replied: “Well, I wish to state that I admit you kind of got me mixed up yesterday, and the only guaranty Dr. Blair made was after I had agreed to pay him; then he guaranteed that my hand would be a hundred per cent efficient after he’d performed the operation.”
The next question asked was, “Now, having thought it over and found out where you’re at, what was the language and circumstances of this guaranty that you’re telling us
Immediately following this testimony, the plaintiff, at least eight different times, stated positively that the guaranty was given after he had promised to pay for the operation.
It is argued by plaintiff’s counsel that the plaintiff became confused and was misled by the cross-examiner. A careful examination of the record does not warrant this conclusion. This testimony was given after mature deliberation. The record is replete with instances which do not have a tendency to substantiate the contention of plaintiff’s counsel that plaintiff was misled, but rather the contrary is true. There is no other testimony which aids that of the plaintiff in this particular.' What, then, was the consideration for the guaranty? What was the benefit to be received by the defendant for the warranty? The only consideration or benefit for this whole transaction, passing from plaintiff to defendant, was the fee of from $25 to $50, and plaintiff says that this fee was for the operation. He says that he agreed to pay this to defendant, and afterwards defendant warranted or guaranteed the results of the operation. That which defendant agreed to do, in consideration of the promise' to pay $25 to $50, was to perform the operation, and the thing that plaintiff
Again it is said: “It surely can never be unfair to a party laboring under no mental infirmity to deal with his case from the standpoint of his own testimony as a witness. Where a party calls witnesses who conflict with each other in their sworn statements, he is not to be held responsible for the contradictions among them, for it is not within his power to prevent their occurrence; and a reviewing court will generally give to a party the benefit of the most favorable version of such testimony as a whole which the jury would be authorized to accept. But a party testifying in his own favor has no right to be intentionally or deliberately self-contradictory; and, if he is so, the courts are fully justified in taking against him that version of his' testimony which is most unfavorable to him. Being peculiarly in a position to state fairly and definitely the facts which he professes to know, he is under a duty of so stating them as to give ¡a candid and intelligible account of what occurred. The courts are also authorized to give great weight to statements unwillingly made upon cross-examination, when these statements have every appearance of being the real truth, though, reluctantly told.” (Western & A. R. Co. v. Evans, 96 Ga. 481, 23 S. E. 494.)
From the foregoing it is apparent that the warranty was made after the agreement to operate and to pay therefor, that the warranty did not become a part of the contract to operate, and that there was no consideration for the warranty. We are of the opinion that the trial court erred in denying defendant’s motion for a nonsuit, that the verdict is against the law, and that the motion for a new trial ought to have been granted.
Error is predicated upon the action of counsel for plaintiff by reason of the following occurrences at the trial below, viz.:
(a) Before the impaneling of the jury to try this cause, but in the presence of the jury composed of the whole panel, defendant moved the court for an order requiring the plaintiff to elect whether he would proceed to trial upon his action for damages ex delicto, as stated in the first cause of action, or upon his action ex contractu, as set forth in the second cause of action. During the argument of this motion, and in the presence of the whole jury panel, counsel for plaintiff said, in part: “May it please the court, we realize, of course, that several demurrers have been filed in this action, but bonding companies defending physicians usually take advantage of everything that they can possibly take advantage of to—” Objection to this statement was made, but the
(b) In the course of the cross-examination of the defendant, counsel for plaintiff asked defendant the following questions: (1) “Are you, or is the Medical Protective Association, the defendant in this case?” (2) “Under your contract with them, would you personally, or would they have to, pay any judgment secured against you?” Objection was made and sustained to both of these questions. Counsel for defendant moved the court to direct counsel for plaintiff to desist from asking further questions of like character, but no such direction was made.
(c) During the argument to the jury, counsel for plaintiff made the following statement: “Of course, he did not care anything about it; it was not any affair of his; he was insured in an insurance company; they had to pay these damages.” To these remarks of plaintiff’s counsel defendant’s counsel duly excepted and requested the court to instruct the jury to disregard the same in its deliberations. The court made no response to such request.
The obvious purpose of these statements and questions was to get before the jury such matter as that the jury might infer therefrom that some bonding company, and not the defendant, would be called upon to bear the burden of meeting any judgment rendered in this cause. Clearly none of such matter was admissible and is without the issues. Such practice is not to be commended. Having determined that this cause must be reversed and remanded upon other grounds, we do not deem it necessary to now determine whether or not the action of counsel complained of constitutes, in itself, reversible error. .
We recommend that the judgment and order appealed from be reversed and the cause remanded to the district court, with directions to set aside the verdict and judgment for plaintiff, and to enter judgment for defendant.-
Reversed.
Dissenting Opinion
I dissent. I believe that the judgment and the order appealed from should be reversed and the cause remanded for a new trial, but not for the reasons assigned by Commissioner Leiper.
In my opinion the conduct .of counsel for the plaintiff in introducing before the jury that which was not at all pertinent to the issues involved, the effect of which was well calculated to influence the jury adversely to the defendant, and the failure of the court, when requested by the defendant, to instruct the jury to .disregard a remark made by counsel for the plaintiff in his argument, all constituted error requiring that the ease be remanded for a new trial. (Kerr v. National Fulton Brass Mfg. Co., 155 Mich. 191, 118 N. W. 925; Iverson v. McDonnell, 36 Wash. 73, 78 Pac. 202; Stratton v. Nichols Lumber Co., 39 Wash. 323, 109 Am. St. Rep. 881, 81 Pac. 831; Lowsit v. Seattle Lumber Co., 38 Wash. 290, 80 Pac. 431; Westby v. Washington B. L. & Mfg. Co., 40 Wash. 289, 82 Pac. 271; Chybowski v. Bucyrus Co., 127 Wis. 332, 7 L. R. A. (n. s.) 357, 360, 106 N. W. 833; Cosselman v. Dumfee, 172 N. Y. 507, 65 N. E. 494; Tremblay v. Harnden, 162 Mass. 383, 38 N. E. 972.)
As to the basic question, whether or not there was a contract of guaranty separate and distinct from the contract for the performance of the operation and promise to pay therefor, I cannot agree with the conclusion reached by Commissioner Lmper. I would not burden the record with my views on the question if the case were remanded for a new trial. By the recommendation of the supreme court commission, based upon his opinion, and approved by the other justices, the
I think too narrow a construction has been given to plaintiff’s testimony. The jury was fully instructed as to the law, and under the instructions the jury could have, in my opinion, found for either party according to their judgment of the evidence and of the conclusions to be drawn therefrom. The jury was first told, in effect'—upon the plaintiff’s theory— that if it found from the evidence that the defendant, for a valuable consideration, agreed to effect a complete cure of plaintiff is hand or to make it 100 per cent efficient by performing a certain operation, and that he failed to carry out his contract, it should find for the plaintiff. (Instructions Nos. 1, 3 and 12.) And, second—upon the defendant’s theory—that if it found from the evidence that after the plaintiff and defendant had agreed that the 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 were without consideration and could not be enforced and verdict should be for the defendant. (Instruction No. 6.) That these instructions fairly and satisfactorily stated the different theories upon which the case was tried by the respective parties is evidenced by the fact that no exception was taken to any instruction given and no error is assigned to the refusal to instruct.
The evidence has been fairly stated by Commissioner Leiper, but I do not think it can be said that no other conclusion can be drawn therefrom than that the guaranty testified to by plaintiff was made after the agreement was entered into for the performance of the operation on the plaintiff’s hand by the defendant for an agreed compensation. The
Whether the defendant did make any guaranty at all, 'as testified to by plaintiff and denied by defendant, was of course, the first question for the jury’s determination. The doctor claimed that he had not made any contract of guaranty at all— not that there was a contract of guaranty which was without consideration. The jury found this issue for the plaintiff. After the jury had resolved that issue in favor of the plaintiff, the next inquiry was whether the guaranty was made contemporaneously with the agreement to perform the operation for a consideration and as a part thereof, or afterwards and as a separate transaction. This issue was also resolved favorably to plaintiff. The jury having concluded from the evidence that the defendant did guarantee the cure, its finding that that guaranty was a part of the contract for the performance of the operation for an agreed consideration was a logical one.
It seems to me that in the very nature of things, considering the relative positions of the parties and the surrounding circumstances, the only natural and logical conclusion from the facts is that found by the jury. What was said between the plaintiff and the defendant respecting the guaranty was not unusual, if the language employed had been used as applied to some different transaction; for instance, if like words respecting a guaranty had been used in connection with the repair of an article of personal property. If a person were taking an article of personal property into a repair-shop, as; for instance, a watch into a jewelry-store to be repaired, and the customer would hand the watch to the jeweler with the inquiry, “Can it be repaired?’’ and should receive the reply that it could, and then an inquiry were made as to the cost, and the price stated for which the work could be done, and then the price agreed to, thereupon, if the customer did not conclude or agree to have the work done except on a guaranty or promise on the part of the jeweler that the watch would be as good as it was before its injury or 100 per cent efficient, the guaranty or promise became, in my opinion, a part of the original contract. In other words, the real question of fact for determination in this case was whether or not plaintiff did agree to have the operation performed without regard to and independent of the guaranty.
Plaintiff has used the word “guaranty,” or that “he guaranteed,” in referring to the respondent’s promises or representations to him with respect to a cure; but it would be unfair to say that they were so used in any technical sense. The word “guaranty” is frequently used as equivalent to the word “warrant,” and was so used by plaintiff. To be enforceable as a contract, the guaranty or warranty must, as the jury was
That the guaranty may have been collateral to the contract for the performance of the operation for a consideration would not in itself invalidate it. Even though collateral, if a part of the transaction or contract, no separate consideration was necessary. It is not necessary that representations, in order to constitute a warranty, should be simultaneous with the conclusion of the bargain, but only that they should be made during the course of the negotiations that lead to the bargain and should then enter into the bargain as a part of it. (24 R. C. L., subject “Sales,” sec. 426; Morris v. Fertilizer Co., 64 Fed. 55, 12 C. C. A. 34; Standard Underground Cable Co. v. Denver Con. Electric Co., 76 Fed. 422, 22 C. C. A. 258.) “It is not, indeed, necessary that the representation, in order to constitute a warranty, should be simultaneous with the conclusion of the bargain, but only that it should be made during the course of the dealing which leads to the bargain, and should then enter into the bargain as part of it.” (Benjamin on Sales, p. 808.) “It will be sufficient, and the warranty will constitute a part of the sale, when, but only when, it is made at some time during the negotiations—after the treaty has 'been begun and before it is finally concluded.” (Mechem on Sales, sec. 1248.)
In the matter of the sale of personal property, the fact that the terms of the sale had been agreed upon and a part payment made will not render unenforceable a subsequent war
By the same parity and force of reasoning it would seem that any representations that were made by the defendant doctor to the plaintiff, in the nature of or constituting a warranty as to the results to be obtained prior to the completion of the contract, would be supported by the original consideration. Here the contract was not performed until the performance of the operation and the payment of the price. But it is not necessary in the instant ease to go so far as this. Here the warranty, according to the jury’s finding implied by its verdict, was made at the time of the agreement for the performance of the operation.
As I understand the court’s instruction No. 6, there is not anything therein not in harmony with the general principles of law herein expressed. Before the jury could have given any consideration to the principle of law stated in that instruction to the effect that there must have been a consideration for the contract of guaranty, and that without such consideration it was a mere gratuitous promise upon which the plaintiff could not recover, it must have found the guaranty or warranty was made “after plaintiff and defendant had agreed that defendant should perform the operation, and what his compensation for the performance of the operation and subsequent treatment should be.” It did not so find. It found, upon plaintiff’s theory as stated in instructions 1, 3 and 12, to the effect that the defendant for a consideration agreed to effect a complete cure; in other words, that the contract to perform the operation and the warranty was all one and the same transaction and was supported by the same consideration—the only logical conclusion, in my opinion, that could be drawn from the testimony.