True v. Older

34 N.W.2d 700, 227 Minn. 154, 1948 Minn. LEXIS 653

• Court: Supreme Court of Minnesota
• Decided: November 19, 1948
• Docket: No. 34,682.
• Status: Published

Opinions

Knutson, Justice.

This is an action for death by wrongful act, brought for the benefit of the seven-year-old daughter of llene Eagen, the deceased. Recovery is sought for an abortion committed on the person of llene and for neglect after the operation, as a consequence of which her death occurred. Demurrers were interposed by both defendants on the ground that the amended complaint failed to state a cause of action. They were overruled, and the question involved was certified as important and doubtful. Defendant Older alone has appealed. He will hereinafter be referred to as the defendant.

M. S. A. 573.02, the death-by-wrongful-act statute, provides:

“When death is caused by the wrongful act or omission of any person or corporation, the personal representative of the decedent may maintain an action therefor if he might have maintained an action, had he lived, for an injury caused by the same act or omission.”

Defendant contends that plaintiff cannot recover, first, because her decedent was guilty of fornication from which pregnancy resulted, making desirable the attempted abortion, for, says defendant:

“Her pregnancy, according to the complaint, was caused by these illicit sexual relations. There could have been no abortion had there not been a pregnancy. There could be no pregnancy without these illicit sexual relations. One depends upon the other.”

With these contentions we cannot agree. It is true that without a pregnancy there could have been no abortion, but it does not follow that because there was a pregnancy caused by illicit relations there must be an abortion. Fornication and abortion are separate acts. Consent or voluntary submission to fornication is no consent to abor tion. If after pregnancy defendant had induced decedent to become intoxicated or had given her drugs so as to render her unconscious and while she remained in that state of unconsciousness he had performed an abortion or procured someone else to do so, could anyone say that she was barred from recovery because the pregnancy was the result of illicit relations? We think not. Abortion would be equally wrong and equally unlawful whether the pregnancy was the result of licit or illicit relations.

Secondly, defendant claims that plaintiff is barred because the complaint does not state that decedent did not submit to the abortion, and, he argues, consent is not synonymous with submission. Therefore, defendant argues, an allegation that she did not “freely and voluntarily consent” to the abortion does not mean that she did not submit to it. This contention is untenable for two reasons. Justification is a matter of defense and need not be negatived in the complaint. 1 C. J., Abortion, § 128; Miller v. Bayer, 94 Wis. 123, 127, 68 N. W. 869, 871, where the Wisconsin court said:

“* * * If the act was justifiable, clearly, in an action for damages, the facts in that regard are a matter of defense; hence not necessary to be alleged in the complaint.”

We believe that the same rule applies where defendant claims the unlawful participation of plaintiff (or plaintiff’s decedent in this case) as a bar to recovery.

In the second place, in order to charge plaintiff’s decedent with wrongful conduct that would bar recovery on any theory, it must be shown that submission to the abortion was voluntary. If defendant forced plaintiff’s decedent to submit to abortion by threats of such a serious nature as to destroy her own volition, there would be no consent at all and consequently no wrong on her part. Restatement, Torts, § 58. If her mental condition was so affected that she was prevented from giving her voluntary consent, there would likewise be no wrong committed on the part of plaintiff’s decedent, and it would avail defendant nothing to claim that such consent had been given or that she had submitted to the operation. 6 C. J. S., Assault and Battery, § 16; Mohr v. Williams, 95 Minn. 261, 104 N. W. 12, 1 L.R.A.(N.S.) 439, 5 Ann. Cas. 303, 111 A. S. R. 462. Prosser, Torts, 119, 122; Restatement, Torts, § 59.

The complaint contains an allegation of duress. It also alleges:

“* * * because of her said pregnant condition, the said llene Eagen was, on March 21, 1947, in a weakened physical and mental condition, all of which the said defendant Raymond Older was fully aware. That pursuant to said conspiracy and in furtherance thereof, the said Raymond Older did, on said March 21, 1947, by means of threats of bodily harm and refusal to marry her and by other means of coercion and duress, compel the said llene Eagen to accompany him to the city of Mankato, Minnesota, and to go to the office there of the defendant W. A. Groebner. That thereupon, pursuant to said conspiracy and in furtherance thereof, the said defendant W. A. Groebner did on or about said March 21, 1947, perform an illegal operation of abortion upon the body of the said llene Eagen.”

Conceding that an allegation of duress alone is not sufficient without stating facts upon which the duress is based, still this complaint does state facts sufficient to constitute a cause of action. The complaint is entitled to liberal construction. M. S. A. 544.16; Chamber of Commerce v. Wells, 96 Minn. 492, 105 N. W. 1124, where we held that the complaint was sufficient on a demurrer, and that if it was insufficient the remedy was by motion to make more definite and certain. We believe that is likewise true here.

Many of the allegations in the complaint are conclusions of law, but eliminating all conclusions of law would still leave the complaint barren of all allegation or admission that plaintiff’s decedent consented to or voluntarily participated in or submitted to the abortion. We have no right to read into the complaint such admission. Consequently, it is not necessary for us to determine whether consent to or voluntary participation in the abortion by plaintiff’s decedent would bar recovery. On this question the authorities are in hopeless conflict. Holding that consent is a bar are the following authorities: Hunter v. Wheate, 53 App. D. C. 206, 289 F. 604, 31 A. L. R. 980; Nash v. Meyer, 54 Idaho 283, 31 P. (2d) 273; Goldnamer v. O’Brien, 98 Ky. 569, 33 S. W. 831, 36 L. R. A. 715, 56 A. S. R. 378; Szadiwicz v. Cantor, 257 Mass. 518, 154 N. E. 251, 49 A. L. R. 958; Bowlan v. Lunsford, 176 Okl. 115, 54 P. (2d) 666; Martin v. Morris, 163 Tenn. 186, 42 S. W. (2d) 207; Androws v. Coulter, 163 Wash. 429, 1 P. (2d) 320. Holding the exact opposite are Milliken v. Heddesheimer, 110 Ohio St. 381, 144 N. E. 264, 33 A. L. R. 53; Martin v. Hardesty, 91 Ind. App. 239, 163 N. E. 610; Miller v. Bayer, 94 Wis. 123, 68 N. W. 869; Lembo v. Donnell, 117 Me. 143, 103 A. 11. Authors of texts are likewise in disagreement. Compare, 1 Cooley, Torts (4 ed.) § 97, and Prosser, Torts, 117, 123.

There is another, and probably more persuasive, reason why the demurrer should be overruled. In addition to alleging the commission of the abortion, the complaint contains the following allegations :

“V.

“That as a result of said operation and while in the office of said defendant W. A. Groebner, the said Dene Eagen became violently ill and unconscious, but that notwithstanding the same, the said defendants negligently failed to provide her with proper medical attention, and that, although both defendants were then fully aware of her serious condition, the defendant Raymond Older removed her from the office of the defendant W. A. Groebner in an unconscious condition and took her to his oil service station at Granada, Minnesota in the early morning of March 22,1947, where he kept her without medical attention of any kind for the remainder of the night.

“VI.

“That by reason of said illegal operation of abortion and as a direct and proximate result of the wrongful, illegal, and unlawful acts of the said defendants and of the failure of said defendants to provide proper medical care for the said llene Eagen, she died on the 24th day of March, 1947.”

These allegations bring the case within the rule stated in Depue v. Flatau, 100 Minn. 299, 111 N. W. 1, 8 L.R.A.(N.S.) 485. See, also, Prosser, Torts, 120.

In the case of Androws v. Coulter, 163 Wash. 429, 1 P. (2d) 320, the action was brought by the administratrix of the estate of a person who died following an abortion. The action seeks to recover for expenses incurred in the last sickness and burial of decedent. The court follows the rule that no recovery can be had for damages resulting from the abortion, but holds that the complaint, in addition, alleges that subsequent to the abortion the decedent did not receive proper care, saying (163 Wash. 432, 1 P. [2d] 321):

“* * * notwithstanding the allegations of negligence in connection with the criminal operation, there are allegations that will permit proof, in addition to the operation performed by the defendant, that, upon becoming aware that the one upon whom the act was performed suffered from septicaemia and peritonitis, he wholly failed and neglected to prescribe for or treat her, and that he wholly abandoned her, knowing that she was so suffering, and knowing that her life was in danger, and without letting her family know of her true condition; and that, had he made known her true physical condition at the time it became known to him, or had he given her proper attention, the death of his patient would not have occurred. Proof of the facts thus alleged would establish a cause of . action. A physician and surgeon has no more right to abandon his patient under such circumstances than he would had she become his patient under ordinary circumstances and in the best of faith.”

The above holding applies to this case. Here, plaintiff seeks recovery not only on the ground that the abortion was improperly performed, but also upon the ground that after the abortion defendants failed to properly care for decedent. Clearly, consent to the abortion would be no bar to a cause of action based upon the claim that after performing the abortion, and knowing the dangerous condition of decedent, defendants failed to provide proper care. The complaint alleges that at that time she was unconscious. She could not consent to the care received while in that condition and was wholly dependent upon defendants. It is unconscionable to believe that defendants could abandon plaintiff’s decedent under these circumstances and thereafter he granted immunity from civil liability because our courts are closed to plaintiff for the reason that plaintiff’s decedent had consented to the abortion.

Affirmed.

1 Reported in 34 N. W. (2d) 700.

2 Lord Mansfield gave classic expression to the rule in Holman v. Johnson, 1 Cowp. 341, 343, 98 Reprint 1120, 1121, where he said:

“The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may so say. The principle of public policy is this; ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both are equally in fault, potior est conditio defendentis.”