Gaines v. Wolcott

• Decision Date: 21 February 1969
• Docket Number: No. 43991,No. 1,43991,1
• Citation: 167 S.E.2d 366,119 Ga.App. 313
• Parties: , 36 A.L.R.3d 621 Freddie A. GAINES v. Joseph WOLCOTT
• Court: Georgia Court of Appeals

Page 366

167 S.E.2d 366

119 Ga.App. 313, 36 A.L.R.3d 621

Freddie A. GAINES v. Joseph WOLCOTT.

No. 43991.

Court of Appeals of Georgia, Division No. 1.

Feb. 21, 1969.

Rehearing Denied March 6, 1969.

Certiorari Granted April 14, 1969.

Syllabus by the Court

The complaint of the unmarried, minor plaintiff stated a tort claim against a chiropractor for damages for her injuries, resulting from an illegal abortion operation performed upon her by him with her assent and caused by his alleged negligence prior to, during the course of and subsequently to said operation; therefore, the court erred in its judgment dismissing the action.

Freddie Alanda Gaines brought a tort action against Joseph Wolcott to recover damages for personal injuries caused by the defendant's alleged negligence in the performance of an illegal abortion upon her. The complaint as amended alleged substantially as follows: On October 18, 1967, the plaintiff, an unmarried, pregnant woman under 21 years of age, called the defendant, a practicing chiropractor in LaGrange, Georgia, to schedule the operation, which was performed in his office the following afternoon. Prior to the operation, he told her never to call him at his home again, because his wife did not know of his abortion practice. Although he demanded a fee of $250 to do the operation, he accepted $150 when she told him that that was all she had with her. The defendant inserted some sort of device, which plaintiff believes to have been a catheter, into her uterine canal and told her to leave it inside her until at least the following Saturday morning or longer. During the approximately one hour and fifteen minute treatment, no other parties were present and plaintiff was not given any anesthesia or shot. Defendant assured plaintiff that the operation which he had performed would cause her to spontaneously abort. The specifications of negligence are: (1) In not using sterile operation techniques; (2) In failing to advise the plaintiff of the possible consequences of the operation; (3) In holding himself out as being capable of performing an operation which requires the skill of a medical doctor rather than that of a chiropractor; and (4) In not taking proper steps to care for plaintiff when she informed him approximately one week later that serious complications had developed as a result of the operation. As a result of the negligent treatment, the plaintiff has suffered and will continue to suffer intense physical and mental pain from her permanent injuries, which caused numerous visits to medical doctors, several hospitalizations and operations, inability to work at her job and future medical expenses.

The trial court granted the defendant's motion to dismiss, from which judgment the plaintiff appeals.

R. Bruce Lowry, Athens, for appellant.

Richter & Birdsong, Horace E. Richter, LaGrange, for appellee.

FELTON, Chief Judge.

This appeal raises the question (apparently a novel one in this State) of whether an unmarried, minor plaintiff can recover damages in her tort action against a chiropractor for her injuries, resulting from an illegal abortion performed upon her by him with her assent and caused by his alleged negligence prior to, during the course of and subsequently to said operation.

The law in this State is that, where one is engaged with another in the simultaneous and wilful violation of the same penal statute, he cannot recover damages for injuries inflicted upon him through the negligence of his joint wrongdoer unless the violation of the statute was not a contributing cause of the injuries; this is based upon the principle that the parties are in pari delicto, that what each does is the act of the other and that to permit a recovery under such circumstances would be in violation of public policy. Allen v. Gornto, 100 Ga.App. 744, 750, 112 S.E.2d 368, and cases cited; Code §§ 37-112, 105-603. The penal statute violated in the present case was either Code § 26-1101 or § 26-1102 (Ga.L.1876, p. 113), depending upon whether the unborn child was quick or not, respectively. Biegun v. State, 206 Ga. 618, 626, 58 S.E.2d 149. Under our abortion statutes, unlike those in some jurisdictions, a female is not guilty of a crime by her participation in an abortion operation, although she may violate other, somewhat related statutes, i.e., Code §§ 26-1104, 26-1105, and 26-1106. 'The female upon whom a criminal abortion has been performed is not an accomplice with the perpetrator of the offense, as she can not be indicted for that offense.' Gullatt v. State, 14 Ga.App. 53(9), 80 S.E. 340. Hence, the plaintiff was neither the principal nor an accomplice in the violation of the penal statute.

Furthermore, even if the plaintiff's participation in the transaction were illegal, it was not a contributing cause of her injuries, such as is required to bar her recovery. Hughes v. Atlanta Steel Co., 136 Ga. 511, 71 S.E. 728, 36 L.R.A.,N.S., 547, Ann.Cas.1912C, 394. 'If * * * the negligence of the parties consists, not in the joint performance of an act, but in the performance of separate and distinct acts, although of the same character and contemporaneous and in violation of the same statute, the act of one not being the act of the other, the person injured is not debarred from a recovery, unless his own negligence was the cause of the injury. It is immaterial whether the negligence of the respective parties is established as a matter of law or as a matter of fact. The theory upon which an injured party is debarred of a right to recover when injured while engaged in the performance of an illegal or criminal act rests, not upon the ground that he is performing an illegal or criminal act, either alone or jointly with the defendant, but upon the ground that his conduct is negligent and is the proximate cause of his injury. Even though negligence might be shown as a matter of law, the question of proximate cause may still be one for the jury.' Schofield v. Hatfield, 25 Ga.App. 513, 514, 103 S.E. 732. Although a jury might find as a matter of fact that the plaintiff was negligent in entrusting herself to a chiropractor for an abortion, the finding might well be demanded that the proximate cause of her injuries was the defendant's alleged negligence in connection with the operation. The requirement of a physician's exercising a reasonable degree of care and skill, set out in Code § 84-924, is applicable to a chiropractor who performs acts usually done by a surgeon. Mims v. Ragland, 59 Ga.App. 703, 706(3), 2 S.E.2d 174; Andrews v. Lofton, 80 Ga.App. 723, 57 S.E.2d 338. Ordinarily, the question of whether such care and skill were used is for a jury. Norton v. Hamilton, 92 Ga.App. 727, 731, 89 S.E.2d 809, 57 A.L.R.2d 426, and cit.

Recovery of damages in cases such as the present one has been permitted in a number of jurisdictions, even in those in which the female involved was guilty of a crime by her participation in the abortion operation. See annotation in 21 A.L.R.2d 364, 369, 371 ( § 3), and cit.

'A distinct split of authority has developed with respect to assent as a defense to acts which amount to a criminal offense. The numerical weight of authority follows the rule that assent to such an act is not a defense in a civil action for the reason that consent to the performance of an unlawful action is invalid.' Harper and James, 'The Law of Torts,' § 3.10, p. 236, n. 31, citing Stout v. Wren, 8 N.C. 420, 9 Am.Dec. 653 (1821); Adams v. Waggoner, 33 Ind. 531, 5 Am.Rep. 230 (1870); Lund v. Tyler, 115 Iowa 236, 88 N.W. 333 (1901); Morris v. Miller, 83 Neb. 218, 119 N.W. 458, 20 L.R.A., N.S., 907, 17 Ann.Cas. 1047 (1909); Royer v. Belcher, 100 W.Va. 694, 131 S.E. 556, 47 A.L.R. 1089 (1926); Brown v. Patterson, 214 Ala. 351, 108 So. 16, 47 A.L.R. 1093 (1926); and see annotations, collecting many cases, in 17 Ann.Cas. 1050, 6 A.L.R. 388 (1920), 30 id. 199 (1924), 47 id. 1092 (1927). See also 1 C.J.S. Abortion § 41, p. 340; 1 Am.Jur.2d Abortion, § 37, p. 210. One such case holds that the consent of the person injured by an unlawful act will not preclude recovery where such act involves a violation of the public peace or the life of the person involved. Milliken v. Heddesheimer, (1924), 110 Ohio St. 381, 144 N.E. 264, 33 A.L.R. 53. The case of Miller v. Bennett, 190 Va. 162(4), 56 S.E.2d 217, 21 A.L.R.2d 364, held that anti-abortion statutes are enacted, not for the protection of the woman, but for the protection of the unborn child and society. While the protection of the unborn child and society are valid purposes of the statute, however, we cannot say that the protection of the woman is not an equally valid and important purpose. Surely the appalling, unsanitary and unprofessional conditions under which such illegal operations are in fact often performed warrant the protection of the law to the woman.

Moreover, the fact that the plaintiff was a minor is a factor in the matter of her consent. 'Where * * * the policy of the law is primarily to protect a definite class of persons from their own immaturity of judgment and not solely to protect the public, the assent of the plaintiff is not a bar to a civil action.' 'The Law of Torts,' supra, p. 237, n. 38, citing 1 Restatement of Torts § 61. An Alabama case, for example, has held that a minor could not legally consent to an abortion operation-a...