Hancock v. Hullett

• Decision Date: 22 May 1919
• Docket Number: 6 Div. 879
• Citation: 203 Ala. 272,82 So. 522
• Parties: HANCOCK et al. v. HULLETT.
• Court: Alabama Supreme Court

82 So. 522

203 Ala. 272

HANCOCK et al. v. HULLETT.

6 Div. 879

Supreme Court of Alabama

May 22, 1919

Rehearing Denied June 30, 1919

Appeal from Circuit Court, Blount County; O.A. Steele, Judge.

Action by C.C. Hullett against J.T. Hancock and another. From judgment for plaintiff, defendants appeal. Affirmed.

McClellan and Thomas, JJ., dissenting in part.

Appellee brought this suit against the appellants to recover damages for wrongfully and unlawfully committing an abortion upon the person of his minor daughter, resulting in permanent injury as approximate consequence of which the plaintiff was caused to lose the services of his said minor child and was put to great expense for medical attention. The defendant Hancock is a physician; and Washburn, the other defendant, was the one charged as being responsible for the condition of the plaintiff's minor daughter. The evidence for the plaintiff tended to show that the defendant Washburn carried plaintiff's daughter to the defendant Hancock's house, and that by the use of instruments inserted into the womb the abortion was a few days thereafter produced; that the daughter of the plaintiff was at the time 17 years of age, living at his house and assisting in the labors of the farm as well as of the household; that she was sick for some little time, dangerously so for a short period, requiring the services of physicians; that she was for some time not able to perform any services; and that she is permanently injured and is able to do little work. The evidence for the defendants was in direct conflict with that for the plaintiff, to the effect that no abortion was performed upon the girl, but merely an examination made in a careful and prudent manner to ascertain whether or not she was pregnant and that nothing was done to produce an abortion. Evidence was also offered tending to show that her injuries were not serious, and that she was able to perform services. The issues of fact were submitted to the jury, resulting in a verdict in favor of the plaintiff for $200 against the defendants; and from this judgment the defendants prosecute this appeal.

Russell & Johnson and Kelton & Son, all of Oneonta, for appellants.

James Kay, of Oneonta, for appellee.

GARDNER J.

This suit is by the father for injuries to his minor daughter, as provided by section 2484 of the Code of 1907. But few questions are presented here for consideration.

It is first insisted by counsel for appellants that reversible error was committed by the court in sustaining the objection of the plaintiff to evidence offered tending to show that the plaintiff's minor daughter consented to the abortion, if in fact, such abortion was committed. In support of this insistence we are cited to 25 Cyc. 1645, and Pratt C. &amp I. Co. v. Brawley, 83 Ala. 371, 3 So. 555, 3 Am.St.Rep. 751, where it is held that, as a general rule, a parent can recover for injuries to his child only under the same circumstances of prudence as would be required if the action were on the part of the infant, and therefore that the contributory negligence of the child may defeat the parent's recovery. We are, however, of the opinion that this principle is not applicable to the instant case. To produce an abortion is a criminal offense, and the plaintiff's minor daughter was incapable of consenting thereto legally; and her consent thereto would in no manner have affected the charge in this complaint that it was wrongfully and unlawfully done. We have reached the conclusion that this insistence is unsound, and that the objection was properly sustained.

The evidence for the plaintiff tended to show that his daughter had become pregnant some four months previous to the abortion; and the plaintiff was permitted to show that during this period her health was good. Counsel for appellant cite us to the case of Evans v. Horton, 93 Ala. 379, 9 So. 534, to the effect that this was too remote to be competent evidence, and that the court erred in its admission. We are, however, of the opinion that the holding in this case does not sustain the contention here made, and that there was no error.

It is next argued that the court committed reversible error in declining to permit the defendant Hancock to offer proof of his general good character. There was no evidence by the plaintiff tending to impeach the character or testimony of the defendant Hancock, and the mere contradiction of this defendant by the plaintiff's daughter as a witness would not of itself authorize proof of good character. We are of the opinion that the case is not within the general exception as to admissibility of such proof under such circumstances, and that under the following authorities of this state such evidence was properly excluded: McCullars v. Jacksonville Oil Mill, 169 Ala. 582, 53 So. 1025; Rhodes v. Ijames, 7 Ala. 574, 42 Am.Dec. 604; Ward v. Herndon, 5 Port. 382; Pearsall v. McCartney, 28 Ala. 110; Owens v. White, 28 Ala. 414; Bell v. State, 124 Ala. 94, 27 So. 414. See, also, Greenl. on Ev. (16th Ed.) p. 40 et seq.

The case of Hein v. Holdridge, 78 Minn. 468, 81 N.W 522, cited by counsel for appellant, supports the insistence here made. The opinion, however, discloses that it is rested upon a decision of that court rendered nearly a quarter of a century previously, and really resting very largely upon the doctrine of stare decisis. It is conceded in that case that the holding is contrary to the great weight of judicial opinion; and two of the justices concurring in a separate opinion express the view that the conclusion was "radically wrong" in the previous case, but they concur upon the ground of stare decisis only. This separate concurring opinion points out that cases of this character cannot be distinguished from those in which the defendant is charged with some fraudulent or deceitful practice, or where in a civil action there is imputed any kind of moral turpitude, such...