It is impossible to determine on which count of the declaration the damages were assessed, or whether both causes of action were considered by the jury in deciding upon the amount of their verdict. Peabody v. Kinsley,40 N.H. 416. If the erroneous theory of liability adopted at the trial may have been considered by the jury on either count, as having some tendency to enhance the damages, their finding in that respect must be set aside, as well as their finding on the issue of liability. While it is true that when the error found to exist in a trial does not apply to or affect all the issues covered by the verdict, a new trial of the entire case is not ordinarily ordered, but only so much of it is set aside as the error related to (Lisbon v. Lyman, 49 N.H. 553; Genest v. Company, 75 N.H. 365; Piper v. Railroad, 75 N.H. 435), it must clearly appear that the effect of the error did not extend to all the issues tried. If the error ostensibly relates to the question of liability, it may still be of such a character as to have had a prejudicial effect on the jury's assessment of damages. If, for instance, it should be erroneously ruled in an action for negligence that the defendant's previous conviction for theft might be considered on the question of liability, it would require little argument to show that it probably had a very prejudicial effect upon the jury's assessment of damages. While not technically relevant to that question or legally relevant to any question in the case, it could not be said, in the absence of specific instructions not to consider it, that the jury did not make it a substantial element of the damages awarded. It would therefore vitiate the entire verdict.
There were two counts in the declaration — one for negligence or malpractice and one for an assault. The evidence tended to show that the plaintiff received a severe injury to his arm, and requested the defendants to examine it and do what was necessary to save the arm, but not to amputate it. He was put under the influence of an anaesthetic, and the defendants upon examining the wound, in disregard of the plaintiff's instruction, amputated the arm. There was a general verdict for the plaintiff, and upon the defendants' exception to the charge of the court to the jury the exception was sustained. It was held in the former opinion that the court erred in instructing the jury that the law imposed upon the defendants the degree of skill possessed by surgeons generally, instead of that possessed by physicians and surgeons whose practice is confined to localities *Page 214 similar in general characteristics to the localities in which the defendants practiced. They were charged with a higher degree of skill than the law requires, and because of that fact the jury may have found they were liable under the first count for malpractice. The question now presented is whether the jury might not also have considered that fact in deciding upon the amount of the damages.
Under the count for malpractice, the jury may have found that, although the defendants had no authority from the plaintiff to amputate his arm, they were negligent in doing what they assumed to do. They assumed to act as surgeons having full authority, and consequently to exercise the professional skill which the law imposes upon surgeons under such circumstances. They were chargeable with the performance of a surgeon's duty when they undertook a surgeon's task. Pittsfield etc. Co. v. Shoe Co.,71 N.H. 522, 533. If they did not have the requisite skill for the performance of that duty, as the jury may have found, and injury resulted to the plaintiff, the question of their liability would be determined against them; but the question of damages would remain. If it is true that in an action for negligence it is immaterial on the question of liability whether the defendant acted willfully in doing the act complained of, the circumstances attending the act, including the motives of the defendant, may often be considered in assessing the damages. "In civil trespasses, the law considers the damage actually inflicted upon the party wronged, rather than the intent or malice of him who is the wrongdoer, though the quo animo is sometimes shown, as material in aggravation of damages." Cate v. Cate,44 N.H. 211, 214; Holyoke v. Railway, 48 N.H. 541, 545; Brown v. Collins,53 N.H. 442.
In Bixby v. Dunlap, 56 N.H. 456, it was held that ordinarily, in actions for torts, the rule of damages is compensation in money for the money value of such damage as would naturally and reasonably be expected to happen to the plaintiff by reason of the wrongful act; but that when the element of malice enters into the wrong a more liberal rule of damages prevails, and the jury, taking into consideration all the circumstances of the wrong, ought to give as compensation what in their judgment it is reasonable that the plaintiff should receive and the defendant pay. This was merely an application of the doctrine announced after much investigation in Fay v. Parker, 53 N.H. 342, which has since been followed in this jurisdiction. Barnes v. Campbell, 60 N.H. 27; Kimball v. Holmes, 60 N.H. 163; Felch v. Railroad, 66 N.H. 318, 320; Friel v. Plumer, 69 N.H. 498; Cooper v. Hopkins, *Page 215 70 N.H. 271; Cohn v. Saidel, 71 N.H. 558, 566, 572; Prescott v. Robinson,74 N.H. 460, 465.
Whether the use of the word "malice" in this connection is not unfortunate, and whether generically it is not too narrow to express the meaning intended, it is unnecessary to inquire, since it undoubtedly includes a willful invasion of the admitted rights of others with reference to person or property. If the jury found, as they might have done in this case, that the defendants deliberately and intentionally disregarded the unequivocal instruction of the plaintiff not to amputate his arm but merely to make an examination of it and dress the wound, while he was unconscious, it could not be doubted that they acted maliciously. Amputating the arm under such circumstances might show a wanton and contemptuous disregard and abuse of the professional confidence which the plaintiff reposed in the defendants. It would be a material circumstance characterizing their act; and upon the authorities cited and upon principle it might have an important bearing upon the amount of damages the plaintiff ought to receive and the defendants ought to pay.
If in connection with, or in addition to, this element of damage, the jury believed that the defendants did not have the skill imposed upon them by the law and that they knew they were incompetent to do what they wrongfully assumed to do, that is, to decide whether amputation was necessary and whether they should perform the operation, — it cannot be doubted that the amount of the verdict would be materially increased thereby. It is also evident that the degree of skill thus considered by the jury in determining the competency of the defendants would be important. If the law required them to have and exercise the skill of the best surgeons and they had only the skill of country physicians, the jury might be convinced that they acted maliciously or wantonly in assuming to undertake to diagnose the case with reference to the necessity of amputation. It would be a willful breach of their duty to the plaintiff, which would authorize the jury to apply what is called a liberal rule of damages. Even if they were guilty of no excess of authority, their attempt to do what they knew they were not qualified to do would furnish ground for the application of that rule of damages, especially if, as was evidently found by the jury, the plaintiff's arm might have been saved by the degree of skill announced in the charge. The erroneous standard of skill by which the jury were guided may have had in their minds a material bearing *Page 216 upon the question of damages; and as it was higher than the law requires, its obvious tendency was to increase the amount of the verdict. If the defendants, falsely representing themselves to the plaintiff to be competent surgeons, unnecessarily cut off his arm, the fact of their incompetency which the plaintiff sought to guard against might cause very deep regret in his mind, for which he ought to receive compensation and for which the defendants ought to make amends. The charge of the court in regard to damages was very brief and did not exclude from the consideration of the jury this element of compensation; so that the presumption is at least that the jury considered all the legal elements of damage that might have been specifically submitted to them under the theory of liability adopted at the trial; and one of those elements was the defendants' want of skill.
Motion for rehearing denied.
YOUNG, J. dissented: the others concurred.