Lembo v. Donnell

103 A. 11, 117 Me. 143, 1918 Me. LEXIS 25

• Court: Supreme Judicial Court of Maine
• Decided: March 11, 1918
• Status: Published

Opinion

Philbrook, J.

This is an action on the case brought to recover damages against the defendant, a physician, for malpractice while performing an operation to procure an abortion on the plaintiff, and for unskilled treatment subsequent to the operation. The defendant filed a general demurrer which was overruled and the case comes to us upon exceptions to that ruling.

The basis of defendant’s exceptions lies in his position that as the plaintiff consented to the operation she cannot recover because the operation is an illegal one.

In a similar case, Miller v. Bayer, 94 Wis., 123; 68 N. W., 869, the court said: “It is further contended that plaintiff cannot recover, because she submitted to the operation performed upon her. Such is not the law. Consent by one person to allow another to perform an unlawful act upon such person does not constitute a defense to an action to recover the actual damages which such person thereby received;” citing 2 Greenleaf Ev., Sec. 85; Shay v. Thompson, 59 Wis., 540, 18 N. W., 473; Fitzgerald v. Calvin, 110 Mass., 153; Adams v. Waggoner, 33 Ind., 531; Com. v. Colberg, 119 Mass., 350; Grotton v. Glidden, 84 Maine, 589.

We agree that this statement of the law is correct.

Exceptions overruled.