Hawkins v. McGee

Supreme Court of New Hampshire, 1929.

84 N.H. 114, 146 A. 641.

Dawson, p. 3-7


Facts: McGee is a doctor and Hawkins was his patient.  Hawkins paid McGee to perform surgery on his hand.  Hawkins testified that McGee guaranteed the hand would turn out “100% perfect” or “100% good”.  It did not turn out that good, and Hawkins sued for assumpsit[1] in trial court in New Hampshire.  The jury awarded damages to Hawkins, but McGee moved to set aside the verdict for, among other things, excessive damages.  The trial judge reduced the damages.  The plaintiff appealed this reduction in damages.


Issue: What damages ought to be awarded to the defendant: restitution interest, reliance interest, expectation interest or some combination thereof?


Rule: The damages that should be awarded are the difference between the value of what the plaintiff would have received if the contract had been carried out and the value the plaintiff currently possesses (plus incidental losses resulting from the contract being breached).  This is known as expectation interest, which means damages shall be awarded such that the plaintiff will be as well off as he would have been if the contract had not been breached.


Analysis: The court reasons by analogy to the case of a machine with a warranty.  If the warranty is broken, the plaintiff gets the value they would have received from a fully working machine minus the value it actually has (plus incidental losses resulting from failing to comply with the warranty).


The trial court’s instructions to the jury suggested instead that they award damages based on pain and suffering plus any injury over and above what the plaintiff had before the surgery.


The court argued that the pain and suffering experienced by the plaintiff in the course of the operation should not be cause for damages because this is pain and suffering the plaintiff would have been willing to endure to make his hand better had the surgery been successful.  Pain and suffering doesn’t necessarily measure the value of a good hand or the difference between that value and the value of the plaintiff’s current hand.


The court also argued that the jury shouldn’t have been told to award damages based on the hand being made worse from the operation.  The court said that this part of the damages would be taken into account if the jury had been instructed to use the correct rule.


Conclusion: The appellate court ruled that the trial court gave inappropriate instructions to the jury.  The court ordered a new trial where the right jury instructions would be given.




McGee settled with Hawkins out of court before the new trial.  Then McGee sued his liability insurance company for his settlement and attorney’s fees.  The trial court ruled in favor of the insurance company because it said McGee’s insurance policy didn’t cover the kind of warranty he made to Hawkins.


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[1]An express or implied promise, not under seal, by which one person undertakes to do some act or pay something to another” – Black’s 7th