Lembo v. Donnell

• Decision Date: 11 March 1918
• Citation: 117 Me. 143,103 A. 11
• Parties: LEMBO v. DONNELL.
• Court: Maine Supreme Court

103 A. 11

117 Me. 143

LEMBO

v. DONNELL.

Supreme Judicial Court of Maine.

March 11, 1918.

Exceptions from Supreme Judicial Court, Androscoggin County.

Action by Carrie Lembo against Charles K. Donnell. Defendant's general demurrer was overruled, and he brings exceptions. Exceptions overruled.

See, also, 116 Me. 505, 101 Atl. 469.

Argued before CORNISH, C. J., and SPEAR, HANSON, and PHILBROOK, JJ.

Newell & Woodside, of Lewiston, for plaintiff. Tascus Atwood, of Auburn, for defendant.

PHILBROOK, J. This is an action on the case brought to recover damages against the defendant, a physician, for malpractice while performing an operation to procure an abortion on the plaintiff, and for unskilled treatment subsequent to the operation. The defendant filed a general demurrer which was overruled and the case comes to us upon exceptions to that ruling.

The basis of defendant's exceptions lies to his position that as the plaintiff consented to the operation she cannot recover because the operation is an illegal one.

In a similar case, Miller v. Bayer, 94 Wis. 123, 68 N. W. 869, the court said:

"It is further contended that plaintiff cannot recover, because she submitted to the operation performed upon her. Such is not the law. Consent by one person to allow another to perform an unlawful act upon such person does not constitute a defense to an action to recover the actual damages which such person thereby received." Citing 2 Greenleaf, Ev. § 85; Shay v. Thompson, 59 Wis. 540, 18 N. W. 473, 48 Am. Rep. 538; Fitzgerald v. Calvin 110 Mass. 153; Adams v. Waggoner, 33 Ind. 531, 5 Am. Rep. 230; Com. v. Collberg, 119 Mass. 350, 20 Am. Rep. 328; Grotton v. Glidden, 84 Me. 589, 24 Atl. 1008, 30 Am. St. Rep. 413.

We agree that this statement of the law is correct.

Exceptions overruled.