Bonner v. Moran

• Decision Date: 29 December 1941
• Docket Number: No. 7834.,7834.
• Citation: 126 F.2d 121
• Parties: BONNER v. MORAN.
• Court: U.S. Court of Appeals — District of Columbia Circuit

126 F.2d 121 (1941)

BONNER v. MORAN.

No. 7834.

United States Court of Appeals for the District of Columbia.

Argued December 1, 1941.

Decided December 29, 1941.

Mr. Harry H. Bettelman, of Washington, D. C., for appellant.

Mr. H. Mason Welch, of Washington, D. C., with whom Messrs. John R. Daily and J. Harry Welch, both of Washington, D. C., were on the brief, for appellee.

Before GRONER, Chief Justice, and MILLER and VINSON, Associate Justices.

GRONER, C. J.:

This is an action for damages for assault and battery. There was a verdict and judgment for the defendant (appellee). The facts are these: Appellant, a colored boy residing in Washington city, was at the time of the events about to be stated 15 years of age. His cousin, Clara Howard, who lived in North Carolina, had been so severely burned that she had become a hopeless cripple. She was brought to Washington by her aunt, who was also the aunt of appellant, and taken to the charity clinic in the Episcopal Hospital, where she was seen by appellee, a physician specializing in plastic surgery. Appellee advised that a skin graft would help her, provided the blood of the donor matched. After a number of unsuccessful efforts to match her blood, the aunt persuaded appellant, then a student in junior high school, to go with her to the hospital for the purpose of having a blood test. His blood matched, and the aunt telephoned appellee, who came to the hospital and performed the first operation on appellant's side. His mother, with whom he lived, was ill at the time and knew nothing about the arrangement. After the operation, appellant returned home and while there advised his mother that he was going back to the hospital to have his side "fixed up." Instead, he remained and in the subsequent operations a tube of flesh was cut and formed from his arm pit to his waist line, and at the proper time one end of the tube was attached to his cousin in the effort to accomplish her relief. The result was unsatisfactory, because of improper circulation of the blood through the tube. Accordingly, the tube was severed, after appellant had lost a considerable amount of blood and himself required transfusions. The tube of flesh was later removed and appellant was released from the hospital. From beginning to end, he was there nearly two months.

There was the usual amount of contradictory evidence as to what occurred prior to the first operation and during the period when appellant was in the hospital. We notice this only for the purpose of saying that there was sufficient evidence, if believed by the jury, to show that appellant's mother never knew the nature of the operations or consented to them. At the close of all the evidence, appellant's counsel asked the court to instruct the jury that before appellee could have the right to perform the operation, he must first have obtained the consent of appellant and of appellant's parents. The court declined so to instruct, but on the contrary told the jury that if they believed that appellant himself was capable of appreciating and did appreciate the nature and consequences of the operation and actually consented, or by his conduct impliedly consented, their verdict must be for the defendant. The decisive question on the appeal is the correctness of this charge to the jury.

In the great majority of the states, this question seems never to have arisen, nor are there any federal cases on the subject. However, the general rule is that the consent of the parent is necessary for an operation on a child. Zoski v. Gaines, 271 Mich. 1, 260 N.W. 99; Moss v. Rishworth, Tex.Com.App., 222 S.W. 225; Rogers v. Sells, 178 Okl. 103, 61 P.2d 1018; Browning v. Hoffman, 90 W.Va. 568, 111 S.E. 492; Commonwealth v. Nickerson, 5 Allen, Mass., 518; Franklyn v. Peabody, 249 Mich. 363, 228 N.W. 681.

We think there can be no doubt that a surgical operation is a technical battery, regardless of its results, and is excusable only when there is express or implied consent by the patient; or, stated somewhat differently, the surgeon is liable in damages if the operation is unauthorized. Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92, 52 L.R.A., N.S., 505, Ann.Cas.1915C, 581; Pratt v. Davis, 224 Ill. 300, 79 N.E. 562, 7 L.R.A., N.S., 609, 8 Ann.Cas. 197; Mohr v. Williams, 95 Minn. 261, 104 N.W. 12, 1 L.R.A., N.S., 439, 111 Am.St.Rep. 462, 5 Ann.Cas. 303. Here, as we have already seen, the question is whether the consent of a boy 15 years of age dispenses with the necessity of consent by his parents. The trial court decided that it did. In this the court followed Section 59 of the Law Institute Restatement of the Law of Torts. There it is stated that, if the child is capable of appreciating the nature, extent, and consequences of the invasion, his assent prevents the invasion from creating liability, even though the assent of the parent is expressly refused. The Institute rule is bottomed on the principle that the very nature of rights of personality is freedom to dispose of one's own person as one pleases. But even if this conclusion be granted, it overlooks the infancy exception to such a rule. In deference to common experience, there is general recognition of the fact that many persons by reason of their youth are incapable of intelligent decision, as the result of which public policy demands legal protection of their personal as well as their property rights. The universal law, therefore, is that a minor cannot be held liable on his personal contracts or contracts for the disposition of his property. So also in the case of female infants the age of consent has been raised in many states from...