Christensen v. Thornby
| Decision Date | 22 June 1934 |
| Docket Number | No. 29856.,29856. |
| Parties | CHRISTENSEN v. THORNBY. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Clay County; Carroll A. Nye, Judge.
Action by Charence H. Christensen against H. J. Thornby. From an order sustaining a demurrer to his complaint, the plaintiff appeals.
Affirmed.
P. A. Wells, of Minneapolis, for appellant.
James A. Garrity, of Moorhead, for respondent.
Plaintiff has appealed from an order sustaining a demurrer to his complaint which is based upon the alleged failure of a sterilization operation performed upon the plaintiff by the defendant, a duly licensed physician and surgeon.
The complaint alleges that the plaintiff's wife had experienced great difficulty with the birth of her first child and had been advised that it would be dangerous to her life to bear another. Plaintiff asserts that he approached the defendant with this information and was advised by him that a sterilization operation upon the plaintiff, technically termed vasectomy, would protect his wife against conception and the consequent dangers of which she had been warned. August 1, 1931, the defendant performed the operation upon the plaintiff, and there is no allegation in the complaint that it was not skillfully performed and no claim is now made by the plaintiff that it was not so done. Plaintiff asserts that defendant advised him that the operation had been successful and guaranteed sterility. Plaintiff alleges that some time following the operation, and relying upon the defendant's advice and representations, he resumed sexual relations with his wife, and, notwithstanding the operation, his wife became pregnant. He alleges that on that account he experienced great anxiety and was subjected to considerable expense both before and after the birth of the child, which his wife in due course survived. The plaintiff bases his cause of action entirely upon the failure of the operation to fulfill the defendant's promise. He seeks a recovery of $5,000 from the defendant to compensate him for his anxiety and expenses.
The trial court sustained a demurrer on the ground that the contract and the performance of the operation were against public policy and that the law would leave the parties where they placed themselves. The defendant further contends that there was no consideration for any guaranty on the part of the defendant that the operation would effect the purpose sought and that because the plaintiff's wife survived the childbirth there was no damage.
It must be borne in mind that the complaint charges no lack of skill, malpractice, or negligence in any respect in the performance of the operation, but merely seeks to recover upon the ground that the operation did not achieve the purpose sought and the results promised.
1. The first question presented is whether a contract to perform such an operation under the circumstances here presented was against public policy and for that reason void. No authorities have been cited to us by either party and we have discovered none that are directly in point. Messieurs Justin Miller and Gordon Dean in their article on the civil and criminal liability of physicians for sterilization operations, which appeared in the American Bar Association Journal, vol. 16 (1930), p. 158, say that they have not been able to find a single reported case where a person who has consented to sterilization has brought suit against the surgeon. There is no statutory prohibition in this state against sterilization, and there is statutory authority under proper safeguards for such operations upon defectives. There is a statutory prohibition against the performance of an abortion, but an exception is made where it is done to save human life. In the five or six states which by statute prohibit sterilization, an exception is made where medical necessity requires the operation.
We are not here confronted with the question of public policy as applied to sterilization where no medical necessity is...
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Phillips v. United States
...was, in reality, a thinly-disguised policy argument, borrowed from earlier "wrongful pregnancy" cases, e. g., Christensen v. Thornby, 192 Minn. 123, 255 N.W. 620 (1934); Shaheen v. Knight, 6 Lycoming Rep. 19, 11 Pa.D. & C.2d 41 (1957), which presupposed that the birth of a child was a "bles......
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Custodio v. Bauer
...patient, or, in the case of a vasectomy, the wife of the patient, is not against public policy. (Christensen v. Thornby (1934) 192 Minn. 123, 125--126, 255 N.W. 620, 621--622, 93 A.L.R. 570; and see Note, Elective Sterilization, 113 U.Pa.L.Rev. (1965) 415, at pp. 423, 427 and 431--433; Case......
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C.S. v. Nielson
...operates to prevent recovery for damages which could be avoided or minimized by reasonable means).28 See, e.g., Christensen v. Thornby, 192 Minn. 123, 255 N.W. 620 (1934); Ball v. Mudge, 64 Wash.2d 247, 391 P.2d 201 (1964); Beardsley, 650 P.2d at 290 (citing Shaheen v. Knight, 11 Pa.D. & C.......
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Speck v. Finegold
...the compensatory damages were recoverable. The first of these cases was decided by the Minnesota courts in Christensen v. Thornby, 192 Minn. 123, 255 N.W. 620, 93 A.L.R. 570 (1934). In that case the plaintiff had undergone a vasectomy after his wife had experienced great difficulty in givin......