Hafemann v. Seymer

• Decision Date: 12 October 1926
• Citation: 210 N.W. 373,191 Wis. 174
• Parties: HAFEMANN v. SEYMER.
• Court: Wisconsin Supreme Court

191 Wis. 174

210 N.W. 373

HAFEMANN

v.SEYMER.

Supreme Court of Wisconsin.

Oct. 12, 1926.

Appeal from Circuit Court, Milwaukee County; Walter Schinz, Judge.

Action by Ben Hafemann, administrator of the estate of Hattie Hafemann, deceased, against L. A. Seymer. From an order sustaining demurrers to parts of the amended complaint, plaintiff appeals. Affirmed.--[By Editorial Staff.]

The defendant, for compensation, was employed to and did render medical and surgical services for the wife of Ben Hafemann between February 19 and 24, 1921; the wife died March 2, and a summons and verified complaint were served May 27, 1921. This process and pleading was by Ben Hafemann as such husband and individual only. Other material allegations in this original complaint were to the effect that defendant found a condition of pregnancy, and prescribed drugs and medicines which were given; that defendant on February 24th negligently and unlawfully used and operated upon said plaintiff's wife with metal instruments, for the purpose and with the intent to and thereby produced an abortion and destruction of the child; that such were not necessary to preserve the wife's life and not advised by two physicians; that such were unlawful and contrary to the statute; that solely as a result of such unlawful, negligent, and criminal operation infection set in, making the wife sick, causing her pain of body and anguish of mind; that she died March 2d; that by reason of the premises, and defendant's unlawful and negligent acts, plaintiff was put to expense, and lost the comfort, society, and services of the wife, to his damage $10,000, for which sum he prayed judgment.

A verified answer was interposed. January 13, 1925, the husband was appointed administrator. January 28, 1925, upon due proceedings an order was made amending the summons, complaint, and all subsequent proceedings, by adding the words “as administrator of the estate of Hattie Hafemann, deceased,” after the words “Ben Hafemann,” then in the title, and granting leave to serve, file, and have stand an amended complaint. Defendant excepted to said order and interposed a new verified answer.

Such amended complaint for a first cause of action recited the appointment as administrator; the prior relationship of husband and wife; the employment for compensation of the defendant to treat the said wife; that defendant entered upon such employment, but failed to use due and proper care and skill in endeavoring to cure said wife; the finding of the pregnancy, for which he negligently and carelessly prescribed certain drugs and medicines, which were, under defendant's directions, administered to the said wife, and which contained ingredients ordinarily used to produce an abortion, and that the latter fact was unknown to the said husband or wife; that February 24th the defendant negligently and carelessly operated upon the said wife with metal instruments, for the purpose and with the intent of treating her and of relieving her pain; that he negligently and carelessly used said metal instruments for such purpose, and then and there negligently and carelessly produced an abortion, by and with the use of such drugs and such instruments, without the consent of the said husband or wife; that immediately prior to and during the course of said operation the defendant failed to properly disinfect said metal instruments, and failed to wear upon his person the garments and appliances usually worn under similar circumstances to prevent poisonous infections, and failed and neglected to cause such garments and appliances as he did wear to be put in an aseptic condition; that by reason of such unskillful and improper conduct by defendant infection set in, the wife was injured in her health and constitution, and made violently ill, and suffered intense bodily pain and anguish of mind; as a consequence of such infection she was confined to her bed and thereafter died, to the plaintiff's damage as such administrator in the sum of $10,000. For a second cause of action the plaintiff repeated and realleged the allegations above set forth, and alleged the expense to the husband in procuring necessary attendance,care, and supplies, and for funeral expenses and the loss of her comfort, society, and services, to the plaintiff's personal damage in the sum of $10,000.

May 15, 1925, more than four years after the death of the wife, plaintiff obtained an order to show cause, and pursuant thereto and on May 18th an order was made, permitting plaintiff to make, file, and serve a second amended complaint, with leave to defendant to plead to the same. Such second amended complaint, after stating the above recited facts as to the prior relationship of husband and wife, her age and condition, the existence of two children, the employment by the husband for compensation of the defendant for the care and treatment of the wife, then set forth six separate causes of action, with the material allegations substantially as follows:

First. The defendant's knowledge of the pregnancy; that he wrongfully and unlawfully and by means of metal instruments inserted gauze and cotton into the uterus, for and with the wrongful and unlawful purpose and intent of wrongfully and unlawfully producing an abortion, and the expulsion of the fœtus, and did thereby wrongfully and unlawfully produce an abortion and destruction of the fœtus; that such was not necessary to preserve the wife's life, nor advised by any other physician or surgeon; that as a result and in consequence of such wrongful and unlawful conduct infection set in, and pain, suffering, and anguish followed, to her damage in the sum of $15,000.

Second. Same as the first just above, except that it states that defendant, with knowledge of the pregnancy, did recklessly, willfully, and wantonly, in total disregard of the safety and life of the said wife, by means of instruments and materials, wantonly, willfully, and in total disregard of the safety and life of the wife, produced an abortion, caused the death of the fœtus, pain, suffering, etc., to her damage in the same sum.

Third. That defendant negligently and carelessly prescribed and caused to be administered drugs and medicines having properties that would produce an abortion; that he negligently and carelessly operated with metal instruments for the purpose of treating and relieving pain; that he so negligently and carelessly operated and administered said drugs as to negligently and carelessly produce an abortion; that in the operation he failed to properly sterilize the instruments, or to wear proper and aseptic garments and appliances, so to prevent poisonous infection; that as a consequence infection set in, she was made ill in body and mind, to her damage $15,000.

Fourth. Repeated the allegations of the first as above, except that it alleged expense, loss, and damage to the husband personally in the sum of $10,000.

Fifth. Same as the second as above, except that this was for his personal loss and damage.

Sixth. A repetition of the third, except that this is for his personal damages.

Defendant answered to the third and sixth, and demurred to each of the others, asserting and relying upon the four-year limitation upon the...