Jackson v. Anderson, 69--77
| Decision Date | 09 January 1970 |
| Docket Number | No. 69--77,69--77 |
| Citation | 230 So.2d 503 |
| Parties | Willie C. JACKSON and James E. Jackson, Appellants, v. Dr. W. Richard ANDERSON, Appellee. |
| Court | Florida District Court of Appeals |
Fred G. Minnis and C. Bette Wimbish, of Minnis & Williams, St. Petersburg, for appellants.
James E. Tribble, of Blackwell, Walker & Gray, Miami, for appellee.
The complaint dismissed by the order appealed from alleges breach of express warranty and negligence. After a difficult time culminating with the birth of her third child, the defendant recommended and performed an operation said to sterilize Mrs. Jackson. Later, Mrs. Jackson conceived and bore a healthy child after an uneventful pregnancy, a fact not pleaded but admitted at the hearing on the motion. The physician whose breach and negligence are charged contends that a normal birth of a healthy child precludes recovery, on grounds of public policy. We disagree.
If the appellee's contention is correct it results in an anomalous situation. It is uncontroverted that Prior to the normal delivery of the child an action would lie. A contract to perform an operation sterilizing the patient is not contrary to public policy. Christensen v. Thornby, 1934, 192 Minn. 123, 255 N.W. 620, 93 A.L.R. 570. Should plaintiffs in this situation file immediately and push for final hearing before delivery? Could a dilatory defendant defeat recovery? Should we recognize a cause of action defeasible upon the happening of a condition subsequent? Even if we treat the order dismissing the complaint as a final summary judgment--which, since it takes into account an admitted fact not pleaded, fits more neatly into our conceptual pigeonholes--the fallacy in appellee's argument is clear: he suggests as vitiating liability a fact which mitigates damages.
We have no way of telling what damages the jury will assess, but if the plaintiffs can prove their case the jury is entitled to assess them. This child is not to be thought of as unwanted or unloved, but as unplanned. It is too early to express a judicial opinion on questions of damages, and we do not imply agreement or disagreement with those parts of the complaint directed to this question. On the basic question, however, we hold that these actions will lie. A California court, in Custodio v. Bauer, 1967, 251 Cal.App.2d 303, 59 Cal.Rptr. 463, discusses the principles involved and collects the authorities. Pinkney v. Pinkney, Fla.App...
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Mason v. Western Pennsylvania Hospital
... ... may nevertheless be loving and prove equal to the task of ... raising a child. Jackson v. Anderson, 230 So.2d 503 ... (Fla.App.1970) ... [ 1 ] It has been observed, most ... ...
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...204 (1976); Coleman v. Garrison, 349 A.2d 8 (Del.1975); Public Health Trust v. Brown, 388 So.2d 1084 (Fla.App.1980). Jackson v. Anderson, 230 So.2d 503 (Fla.App.1970); Hackworth v. Hart, 474 S.W.2d 377 (Ky.1971); Troppi v. Scarf, 31 Mich.App. 240, 187 N.W.2d 511 (1971); Sherlock v. Stillwat......
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Speck v. Finegold
...Anonymous v. Hospital, 33 Conn.Sup. 126, 366 A.2d 204 (1976) (negligent sterilization); Bowman v. Davis, supra.22 See Jackson v. Anderson, 230 So.2d 503 (Fla.App.1970), where the court held that parents' cause of action for "wrongful life" will lie and damages are a matter for jury determin......
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