79 N.E. 562 (Ill. 1906), Pratt v. Davis

CourtSupreme Court of Illinois
Writing for the Court[224 Ill. 303] SCOTT, C.J.
Citation224 Ill. 300,79 N.E. 562
PartiesPRATT v. DAVIS.
Docket Number.

Page 562

79 N.E. 562 (Ill. 1906)

224 Ill. 300




Supreme Court of Illinois

December 22, 1906

Appeal from Appellate Court, First District.

Action by Parmelia J. Davis, by next friend, against Edwin H. Pratt. From a judgment of the Appellate Court (118 Ill.App. 161) affirming a judgment for plaintiff, defendant appeals. Affirmed.

Page 563

[224 Ill. 301]Walker & Williams and Roy C. Merrick, for appellant.

[224 Ill. 302] Samuel J. Howe, for appellee.

[224 Ill. 303] SCOTT, C.J.

This is an appeal from a judgment of the Appellate Court for the First District affirming a judgment of the circuit court of Cook county in favor of appellee and against appellant, for the sum of $3,000, in an action for trespass to the person.

Appellant is a physician in the city of Chicago, and at the time of the wrong charged was engaged in conducting a sanitarium on Diversey boulevard. Appellee, a married woman about 40 years of age and a resident of the same city, came to this sanitarium for treatment for epilepsy in [224 Ill. 304] May, 1896. She had been subject to epileptic seizures for a period of 15 years, but up to this time she had been able to perform her household duties and had borne four children, three since she first exhibited symptoms of epilepsy. The seizures had gradually been increasing in frequency. Following each of them she would be very weak in body and dazed and uncertain in mind for several hours. The evidence of those who knew her in her daily life is generally to the effect that her mind, except during the periods immediately following these attacks, was normal. Appellant made an examination of the pelvic organs, and found that the uterus was contracted and lacerated, and that the lower portion of the rectum was deseased. On May 13, 1896, he operated for these difficulties. Thereafter she remained in the sanitarium without improvement several weeks and then returned home. On July 29, 1896, her brother-in-law, at request of her husband, took her again to the sanitarium, and on the next day appellant performed a second surgical operation upon her, removing her ovaries and uterus. She continued at the sanitarium until the 8th day of August, 1896, and then was removed to her home. Neither operation was successful, so far as improving her health was concerned. She grew gradually worse mentally, and on August 25, 1898, was adjudged insane and sent to the state asylum at Kankakee, and was not a witness in the trial of this case. The cause of action is based on the removal of the uterus at the second operation. It is not claimed that the operation was unskillfully performed, but that it was performed without the authority or consent of appellee and constituted a trespass to her person.

The declaration, so far as now material, averred that appellee had placed herself under the care of appellant, and that he, without her consent or the consent of any one authorized to act for her, anaesthetized her and removed the uterus. Appellant interposed the general issue and a special plea of leave and license for doing the acts complained of. [224 Ill. 305] To the special plea a replication was filed denying the leave and license. There is no pretense that appellee herselfconsented

Page 564

to the removal of the uterus. In fact, appellant himself testifies that he told Mrs. Davis just enough about her condition, and what he proposed to do, to get her consent to the first operation, and says, quoting his own language: 'I worked her deliberately and systematically, taking chances which she did not realize the full aspect of, deliberately and calmly deceiving the woman; that is, I did not tell her the whole truth.' And, referring to the first operation, he says: 'She knew that the womb was to be operated upon, and she was willing that should be done. Consent for further work was not obtained.' The record does not disclose the circumstances under which the anaesthetic was administered prior to the second operation. Appellant, however, contended that the appellee was so mentally unsound as to be incapable of consenting or of giving intelligent consideration to her condition, and that her husband authorized the second operation. Whether appellee was then mentally incapable of consenting was a question as to which the evidence was conflicting. The trial court held a proposition of law stating that the burden of proof was upon the appellant to show leave and license, and it is said that this was improper in view of the averments of the declaration. If the declaration made necessary proof of the fact that the operation was performed without the consent of appellee or some one who under the...

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77 practice notes
  • 373 Mass. 728 (1977), Superintendent of Belchertown State School v. Saikewicz
    • United States
    • Massachusetts United States State Supreme Judicial Court of Massachusetts
    • November 28, 1977
    ...the individual interest in preserving "the inviolability of his person." Pratt v. Davis, 118 Ill.App. 161, 166 (1905), aff'd, 224 Ill. 300, 79 N.E. 562 (1906). One means by which the law has developed in a manner consistent with the protection of this interest is through the devel......
  • 390 Mass. 480 (1983), Commonwealth v. Burke
    • United States
    • Massachusetts United States State Supreme Judicial Court of Massachusetts
    • November 22, 1983
    ...Children's Hosp. Medical Center, 387 Mass. 152, 154, 439 N.E.2d 240 (1982), quoting Pratt v. Davis, 118 Ill.App. 161, 166 (1905), aff'd, 224 Ill. 300, 79 N.E. 562 (1906). A consensual, offensive touching is a contradiction in terms. Hence consent is always at issue, and evidence thereof is ......
  • 260 N.W. 99 (Mich. 1935), 92, Zoski v. Gaines
    • United States
    • Michigan Supreme Court of Michigan
    • April 8, 1935
    ...N.W. 681, for a discussion of assault during operation. For other cases where consent will be implied in an emergency, see Pratt v. Davis, 224 Ill. 300, 79 N.E. 562, 7 L. R. A. (N. S.) 609, 8 Ann. Cas. 197; Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92, 52 L. R. A.......
  • 327 S.W.2d 187 (Mo. 1959), 46881, Steele v. Woods
    • United States
    • Missouri United States State Supreme Court of Missouri
    • September 14, 1959
    ...7; Barfield v. South Highland Infirmary, 191 Ala. 553, 68 So. 30, 35; Keister v. O'Neil, 59 Cal.App.2d 428, 138 P.2d 723; Pratt v. Davis, 224 Ill. 300, 79 N.E. 562, 7 L.R.A.,N.S., 609. [24] Williams v. Chamberlain, Mo., 316 S.W.2d 505, 511; Pedigo v. Roseberry, 340 Mo. 724, 102 S.W.2d 600. ......
  • Request a trial to view additional results
73 cases
  • 67 N.Y.2d 485, Rivers v. Katz
    • United States
    • New York United States Court of Appeals (New York)
    • June 10, 1986
    ...U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734; Davis v. Hubbard, 506 F.Supp. 915, 930-933; Pratt v. Davis, 118 Ill.App. 161, 166, affd. 224 Ill. 300, 79 N.E. 562). This right extends equally to mentally ill persons who are not to be treated as persons of lesser status or dignity because ......
  • 126 P.2d 765 (Wash. 1942), 28667, In re Hudson
    • United States
    • Washington United States State Supreme Court of Washington
    • June 8, 1942
    ...an operation, a surgeon performing such operation without the consent of the husband of that woman is liable in damages. Pratt v. Davis, 224 Ill. 300, 79 N.E. 562, 7 L.R.A.,N.S, 609, 8 Ann.Cas. 197. Even in those cases arising under the workmen's compensation acts which require an injured p......
  • 474 P.2d 909 (Wash.App. Div. 3 1970), 48--40427, Mason v. Ellsworth
    • United States
    • Washington Court of Appeals of Washington
    • September 23, 1970
    ...a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages. 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......
  • 263 P. 607 (Wyo. 1928), 1391, Williams v. Yocum
    • United States
    • Wyoming United States State Supreme Court of Wyoming
    • January 31, 1928
    ...of incompetent evidence is not ordinarily a ground for reversal. See Freeman v. Peterson, 45 Colo. 102, 100 P. 600; Pratt v. Davis, 224 Ill. 300, 79 N.E. 562, 7 L.R.A. (N.S.) 609, 8 Ann. Cas. 197; Griffith v. Anchor etc. Co., 143 Iowa 88, 120 N.W. 90; Sarbach v. Sarbach, 86 Kan. 894, 122 P.......
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4 books & journal articles
  • The Glucksberg & Quill Amicus Curiae Briefs: verbatim arguments opposing assisted suicide.
    • United States
    • Issues in Law & Medicine Vol. 13 Nbr. 1, June 1997
    • June 22, 1997
    ...without permission, the bodily integrity of the patient by a major or capital operation. Pratt v. Davis, 118 Ill. App. 161 (1905), aff'd 224 Ill. 300, 79 N.E. 562 (1906). Similarly, in a 1914 New York case, Justice Brandeis wrote, "every human being of adult years and sound mind has a ......
  • Informed consent: from the ambivalence of Arato to the thunder of Thor.
    • United States
    • Issues in Law & Medicine Vol. 10 Nbr. 3, December 1994
    • December 22, 1994
    ...inform patient in an emergency unless no relative or guardian can be obtained to give the necessary consent to treatment); Pratt v. Davis, 79 N.E. 562, 564 (Ill. 1906) (holding that consent of husband to extent of treatment would have been sufficient but was not obtained); Rothe v. Hull, 18......
  • When human experimentation is criminal.
    • United States
    • Journal of Criminal Law and Criminology Vol. 99 Nbr. 1, January 2009
    • January 1, 2009
    ...v. Strain, 137 P. 96, 97-99 (Okla. 1913). (30) Schloendorff v. Soc'y of N.Y. Hosp., 105 N.E. 92, 93 (N.Y. 1914) (citing Pratt v. Davis, 79 N.E. 562 (Ill. 1906)). Justice Cardozo is often cited as the source of the modem doctrine of informed consent. Morris, supra note 5, at 317. But see Pau......
  • Towards a public human tissue trust.
    • United States
    • Case Western Reserve Law Review Vol. 59 Nbr. 4, June 2009
    • June 22, 2009
    ...CONSENT 137 (1986). (224) 370 N.E.2d 417 (Mass. 1977). (225) Id. at 424 (quoting Pratt v. Davis, 118 Ill. App. 161,166 (1905), aff'd, 79 N.E. 562 (III. (226) Canterbury, 464 F.2d at 780. (227) 874 F. Supp. 796 (S.D. Ohio 1995); see also Stadt v. Univ. of Rochester, 921 F. Supp. 1023, 1027 (......

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