Hobbs v. Kizer

• Decision Date: 11 October 1916
• Docket Number: 4706.
• Parties: HOBBS v. KIZER.
• Court: U.S. Court of Appeals — Eighth Circuit

236 F. 681

HOBBS v. KIZER.

No. 4706.

United States Court of Appeals, Eighth Circuit.

October 11, 1916

E. C Crampton, of Raton, N.M., and Charles A. Spiess, of East Las Vegas, N.M., for plaintiff in error.

A. C Voorhees and H. L. Bickley, both of Raton, N.M., for defendant in error.

Before CARLAND, Circuit Judge, and TRIEBER and VAN VALKENBURGH District Judges.

TRIEBER District Judge.

The defendant in error, plaintiff in the court below, instituted this action in the District Court against the plaintiff in error, defendant in the court below, to recover damages for an abortion alleged to have been committed on her by the defendant without her knowledge and consent. There was a trial to a jury, which resulted in a verdict for the plaintiff. This writ of error was sued out by the defendant for the purpose of reversing the judgment entered upon the verdict of the jury.

The complaint charges that the defendant was a physician and surgeon in the city of Raton, state of New Mexico; that the plaintiff in April, 1914, was a patient of his, and while the relationship of physician and patient existed the defendant induced the plaintiff to have illicit sexual intercourse with him; that as a result of said illicit intercourse plaintiff became pregnant; that about the first week in August, 1914, plaintiff informed the defendant of the nature of her condition of pregnancy, and defendant assured plaintiff she was not pregnant, and induced her to submit to an examination by him to determine the cause of the condition which led the plaintiff to believe she was pregnant; that plaintiff submitted to said examination, and defendant, after making such examination, represented to her that her condition was due to an abscess in the vagina; that the defendant used instruments in making said examination, and fraudulently and deceitfully, and without the knowledge of the plaintiff, removed the foetus from the womb of the said plaintiff, by reason whereof plaintiff became seriously ill and was removed to a hospital, where defendant performed an operation, as plaintiff believed, for the removal or treatment of said abscess, but which was in fact to remove the effect of said abortion; that she at no time consented to the performance of said abortion; that the acts of the defendant were wholly against her will. The defendant's answer was a general denial.

The only ground upon which the defendant seeks a reversal by his assignment of errors is that the court erred in refusing to instruct the jury to return a verdict for the defendant.

The well-established rule is that on a motion for a directed verdict the court must take the view of the evidence most favorable to the adverse party. Crookston Lumber Company v. Boutin, 149 F. 680, 79 C.C.A. 368; Southern Ry. Co. v. Gadd, 207 F. 277, 125 C.C.A. 21, affirmed 233 U.S. 572, 34 Sup.Ct. 696, 58 L.Ed. 1099. Another rule, equally well established, is that only when all reasonable men, in the honest exercise of a fair, impartial judgment, would draw the same conclusion from the facts which condition the issue, it is the duty of the court to withdraw that question from the jury. District of Columbia v. Robinson, 180 U.S. 92, 21 Sup.Ct. 283, 45 L.Ed. 440; Delk v. St. Louis & San Francisco R.R. co., 220 U.S. 580, 587, 31 Sup.Ct. 617, 55 L.Ed. 590; St. Louis, Iron Mountain & Southern Ry. Co. v. Leftwich, 117 F. 127, 54 C.C.A. 1; Teis v. Smuggler Mining Co., 158 F. 260, 85 C.C.A. 478, 15 L.R.A. (N.S.) 893; Insurance Co. v. Hoover Dist. Co., 182 F. 590, 598, 105 C.C.A. 128, 136, 31 L.R.A. (N.S.) 873; Liberty Bell Gold Mining Co. v. Smuggler-Union Mining Co., 203 F. 795, 800, 122 C.C.A. 113, 118.

The evidence in this case is conflicting. A review of the evidence shows: The plaintiff testified That she was ill, and called on the defendant to treat her as her physician. While this relationship existed, he persuaded her to consent to sexual intercourse. About August 14, 1914, she realized that she had become pregnant, and went to the defendant and told him of her condition. He made an examination, and told her that she was mistaken, and then told her to come the next day for another examination. The second examination was made with instruments, and she suffered untold agony, and although she wanted him to stop he refused to do so. He then told her to go to her room and he would take care of her. He then sent her to the hospital, where he performed another operation. She also testified that she had explained to him her condition; that she had morning sickness, and such a feeling that she could not work, and wanted to know what her condition was, so that she might leave the place where she was living, as she did not want them to know her condition. She was then employed as maid at the residence of Mrs. Naylor. She told Dr. Hobbs that she had no money, and if she was pregnant she wanted to go some place where she could be taken care of, being penniless. 'I told the doctor that my menstruation had stopped for over a month. ' In a few days after the operation had been performed, her breasts became very hard, caked, and were very painful. She asked the defendant what was the cause of this, and he told her he did not know. 'He asked me if there was milk in my breasts. ' She told him, 'I thought you said there was nothing wrong;' and he replied, 'Well, milk and water together; there was nothing wrong with you. ' She testified that her breasts were very hard, very full, had milk in them, and were massaged. They were taken care of by different nurses, at different times during the day and night. Her breasts became in that condition a few days after the operation. ' After the operation I was flowing, and continued flowing for two weeks after I left the hospital. ' Dr. Lyon and Miss Palmer, the head nurse of the hospital, and Mrs. Allen, 'my own nurse,' were present when the operation was performed by the defendant. Dr. Lyon gave her the ether. The defendant had told her he was going to operate for an abscess, but denied that she was pregnant. She denied that she ever consented to the abortion. Afterwards she was very weak, and her womb hurt her all the time, so she could hardly work....