Goldnamer, &C., v. O'Brien by, &C.

• Decision Date: 16 January 1896
• Citation: 98 Ky. 569
• Parties: Goldnamer, &c., v. O'Brien by, &c.
• Court: Kentucky Court of Appeals

Page 569

98 Ky. 569

Goldnamer, &c., v. O'Brien by, &c.

Court of Appeals of Kentucky.

January 16, 1896.

APPEAL FROM HARDIN CIRCUIT COURT.

W. H. MARRIOTT AND JAMES C. POSTON FOR APPELLANTS.

W. R. HAYNES, J. D. IRWIN AND H. T. KENDALL FOR APPELLEE.

JUDGE HAZELRIGG DELIVERED THE OPINION OF THE COURT.

The appellants were sued by the appellee, Sallie O'Brien, for inducing her to submit to an attempted abortion on her person by a physician procured by them, and judgment was rendered for $1,700.

If we assume from the proof that the appellants did in any way induce the appellee to resort to this method of hiding her shame, and they deny this most earnestly, it is clear from the testimony that she left her home in Elizabethtown and went to Louisville in search of this relief voluntarily, and alike voluntarily submitted herself to the treatment of a physician.

Her pregnancy was not attributable to either of the appellants and, at most, they may have urged the Louisville trip as the only means of securing the desired result, and may have furnished money and otherwise assisted the plaintiff in the accomplishment of her purpose. While it is not directly shown that either of them employed or otherwise procured the physician, and such a conclusion is based on the barest inference, yet this question is properly submitted to the jury, and we shall assume such a state of fact.

Waiving other questions, the important one in this appeal is, can the plaintiff maintain this action? Or rather, as the petition avers an abduction and an attempted abortion, against the plaintiff's will and consent, the question is, is she entitled to a judgment upon the state of fact thus assumed to exist, and apparently found to exist by the jury? The right to recover is of course clear unless it is destroyed by the complainant's consent to the assault, and whether this affects the right is a question of much conflicting authority.

It may be stated generally that the suit of a wrongdoer will be rejected when seeking redress for another's having participated with him in the wrong. Thus a woman who immorally yields to her seducer can not sue because she consented to and participated in the wrong whereof she complains. (Bishop on Non-contract Law, section 57; Cline & Co. v. Templeton, 78 Ky., 550.) The author last quoted further says (section 196) that "rape, one of the most aggravated batteries, is, if the woman consents, neither rape nor even assault," and that "the execution of any unlawful contract places it past annulment, and leaves no right of action in either party against the other. So that, though a mutual beating by consenting parties is a wrong against the public, because a breach of the peace, it is not such as between themselves; since neither can complain of that to which he consented." And the learned author after citing a number of American and English cases to sustain the text adds: "Such is the distinct and inevitable deduction of the reasoning of the law; applicable, however, in all its consequences, only where the beating was not in excess of the consent. But we have American cases in which the judges have overlooked the distinction between the civil and criminal remedy, and so have held that one may maintain his civil suit for a battery to which he consented and in which he participated. Decisions like these, proceeding on a misapprehension, and overlooking established law not brought to the notice of the judges, should not be followed in future cases."

To the same effect Mr. Roscoe says (1 Ros. Cr. Ev., 306): "In consequence of the natural desire not to permit a flagrant act of immorality to go unpunished, an...