JEFFERSON (Bernard), J. I dissent.
The majority holds that the jury was instructed incorrectly on the issue of defendants’ liability for breach of warranty, and that the giving of such instruction, even though there were other theories of liability advanced by the evidence, constituted a miscarriage of justice. The majority asserts that the miscarriage of justice results from the fact that it cannot be determined what theory of liability was adopted by the jury. It is the view of the majority that one instruction, given by the court to the jury at plaintifFs request, permitted the juiy to award plaintiff a verdict on the breach-of-warranty theory without a finding that the defendants had expressly promised or warranted that a certain result would follow from the particular operation consented to by plaintiff.
It is my view that there were no errors with respect to the instructions given regarding the breach-of-warranty theory, and that the majority has engaged in unwarranted speculation and specious reasoning in concluding that the jury could have been misled by the instructions given by the court.
In the case at bench, the plaintiff’s testimony was certain and definite. She testified that Dr. Shipkowitz told her “that by doing the tube ligation I [the plaintiff] would be permanently sterilized, that I [the plaintiff] would not have to worry anymore about becoming pregnant, that I would not have to be walking around like a time bomb, . . .” At another point in her examination, the plaintiff testified as follows: “Q. Had you ever heard of a bilateral tubal ligation before it was brought up by Dr. [173]Shipkowitz on that occasion? [1] A. No, [If] Q. Did he explain to you what the procedure was? [1] A. No, not in detail. [If] Q. Well, did he say anything on the subject at all, Mrs. Depenbrok? [If] A. He said it was a sterilization process, that I would be sterile and therefore not have to worry about becoming pregnant again, that I would be sterile and it would be permanent.” (Italics added.)
In his testimony Dr. Shipkowitz contradicted this testimony of plaintiff by stating that, although he had no personal recollection of his conversation with plaintiff, he was sure that he had followed his usual custom in telling patients about the tubal ligation procedure. His testimony was as follows: “Q. A thousand? Do you talk to your patients before you do a tubal ligation customarily? [If] A. Yes, I do. [1f] Q. And you have a custom which you engage in when you advise them about the procedure? [If] A. Yes, I do. [If] Q. As to what you tell them? Would you tell us what you customarily tell your patients? [If] A. I customarily tell anybody I am proposing to do a tubal ligation on that the procedure, itself, is a permanent procedure. It is something that is nonreversible. It means once the incision is made and it is done, in fact to undo it is exceedingly difficult with very poor results. [If] The second thing I tell them, that it is not guaranteed. It does not come with any warranty. There is a reported failure rate with tubal ligation in all theories, no matter what method is done there is approximately one percent failure rate. [If] It tends to be somewhat higher at the time of repeat cesarean section.” (Italics added.)
In view of the direct conflict between the testimony of the plaintiff and the testimony of Dr. Shipkowitz, one of the defendants, as to what was said preceding the tubal ligation procedure, I see no basis for the majority’s conclusion that the jury could have been misled into thinking that plaintiff was entitled to recover even if the jury adopted the defendants’ view as to the preoperation conversation between plaintiff and Dr. Shipkowitz rather than finding plaintifFs version of the conversation to be true.
The majority emphasizes the fact that in one of the instructions given by the court, at plaintifFs request, the language was used that an affirmation of fact or promise as a warranty could be an affirmation that the bilateral tubal ligation possessed “some characteristic results.” The majority concludes, therefore, that a defendant’s promise of some [174]characteristic results may not be construed as a clearly promised particular result.
The majority stresses this one instruction given by the trial judge at the request of plaintiff. However, the trial judge gave three instructions—not just one instruction—regarding the subject of warranty. It is my view that these three instructions, considered in the light of the diametrically opposed and contradictory testimony by the plaintiff and Dr. Shipkowitz as to what Dr. Shipkowitz promised as the specific result of the tubal ligation operation, constituted correct and nonmisleading instructions on the subject of warranty.
The one instruction which the majority criticizes was as follows: “One of the elements of a contract to perform a bilateral tubal ligation may be an affirmation of the fact or promise that such operation possess some characteristic results. Such an affirmation of fact or promise is called a warranty.”
A second instruction which followed the first was as follows: “Any affirmation of fact or promise made by a defendant to the plaintiff which relates to the operation to be performed and becomes part of the basis of the bargain creates an express warranty that the operation shall conform to the affirmation or promise. Such affirmation or promise may be oral or in writing. [If] No particular word or form of expression is necessary to create an express warranty, nor is it necessary that a defendant use formal words, such as ‘warrant’ or ‘guarantee’ or that he have a specific intention to make a warranty.” (Italics added.)
The third instruction which was given was as follows: “If you find that such an affirmation of fact or promise was made to plaintiff by Dr. Shipkowitz or by Dr. Sillette, and that the promise was breached, and that such breach of the promise was a proximate result of injuiy or damage to the plaintiff, then plaintiff is entitled to recover damages as against defendants.”
The majority concedes that the issue which the jury was called upon to decide was whether the defendant physicians had told plaintiff that the bilateral tubal ligation procedure would, without any question, result in permanent and irreversible sterilization. The majority seems to conclude that since the court’s instructions did not use some special magic expression, the juiy had been misled. What the majority does in this case [175]is to exalt form over substance. I see no reasonable basis for concluding that the jury was being told that Dr. Shipkowitz’ version of his conversation with the plaintiff about the operation could result in a verdict for plaintiff.
It is my view that any reasonable jury would understand from the court’s three instructions regarding breach of warranty that the plaintiff would be entitled to recovery on a warranty theory only if the juiy believed plaintiff’s version of her conversation with Dr. Shipkowitz and not if the jury were to accept Dr. Shipkowitz’ version of that conversation. If plaintiff’s testimony was to be believed, Dr. Shipkowitz made a specific, clear and express promise to effect a specific result—permanent and irreversible sterilization—which was in the reasonable contemplation of both Dr. Shipkowitz and the plaintiff and was relied upon by the plaintiff.
In light of the third instruction on the theory of warranty—that Dr. Shipkowitz or Dr. Sillette had to make a promise to plaintiff which was breached, and that such breach was a proximate result of injury or damage to plaintiff, it is inconceivable that the jury could find for plaintiff unless the jury believed the promise to be that promise testified to by plaintiff. If the juiy believed Dr. Shipkowitz’ testimony, it could not reasonably interpret the court’s instructions as authorizing a finding that a promise by Dr. Shipkowitz was breached, since his promise, according to him, did not indicate to plaintiff that, as a result of the tubal ligation operation, she would be guaranteed permanent freedom from getting pregnant.
The evidence and the instructions in the case at bench clearly justified the juiy in finding that Dr. Shipkowitz had made to plaintiff a specific, clear and express promise to produce a specific result—permanent and irreversible sterilization; that he had breached this promise since she became pregnant following the tubal ligation operation, and that such breach was a proximate result of injury or damage to her. Consequently, I see no basis for reversing the judgment entered upon the juiy’s verdict in plaintiff’s favor.
I would affirm the judgment.
Respondent’s petition for a hearing by the Supreme Court was denied June 1, 1978. Bird, C. J., Mosk, J., and Manuel, J., were of the opinion that the petition should be granted.