Milliken v. Heddesheimer

• Decision Date: 27 May 1924
• Docket Number: 18278
• Citation: 144 N.E. 264,110 Ohio St. 381
• Parties: Milliken v. Heddesheimer, Admr.
• Court: Ohio Supreme Court

144 N.E. 264

110 Ohio St. 381

Milliken v. Heddesheimer, Admr.

No. 18278

Supreme Court of Ohio

May 27, 1924

Torts - Consent to wrongful act inapplicable, when - Illegal operation to produce abortion - Administrator may recover damages, when.

1.The general rule that one may not recover for injuries resulting from an act to which he bad consented does not apply when the public peace or the life of a participant in the wrongful act is Involved.

2.An action to recover damages from one who performed an illegal operation to produce an abortion may be maintained by the administrator of the woman whose death resulted from such wrongful act, even though she consented thereto. (Barholt v Wright, 45 Ohio St.177, 12 N. E., 155, 4 Am.St. 535, approved and followed.)

This action was instituted in the court of common pleas of Summit county, Ohio, wherein Jacob Heddesheimer, administrator of the estate of Iva J. Triplett, deceased, on behalf of her surviving husband and children, sought to recover damages for her wrongful death, which it was claimed was caused by one C W. Milliken. The petition contained two causes Of action, the first being as follows:

"Plaintiff says that the defendant herein, at the time complained of herein, was a practicing physician in the city of Akron Summit county, Ohio. That on March 1st, 1921, said defendant unlawfully and criminally performed an operation upon the decedent, Iva J. Triplett, for the pur- pose of procuring an abortion or a miscarriage, said operation not being necessary tO preserve the life of the said Iva J. Triplett and said operation being performed without being advised by two physicians to be necessary for that purpose.

"Plaintiff says that said operation immediately caused the decedent to become extremely ill. That said decedent died on March 9, 1921. That the direct and proximate cause of her death was said criminal operation performed by the defendant as hereinabove stated."

In the second cause of action it is first averred:

"For his second cause of action, the plaintiff herein adopts all the allegations contained in his first cause of action, the same as if herein fully rewritten, and says that said operation not only was unlawfully and criminally performed, but was so negligently and carelessly performed that septicemia immediately resulted therefrom."

The respects in which it is claimed the defendant was negligent in the performance of such operation are then set forth, it being averred that after knowing that septicemia had developed, the defendant concealed that fact so that the family did not know the necessity of the care and attention which her physical condition required, and that if the hospital and medical care and attention which the condition of the deceased demanded had been given at the time death would not have resulted.

The answer of the defendant admitted that on three or four occasions during the month of March, 1921, he professionally attended the said Iva J. Triplett; but otherwise, in substance, the answer was a denial of the material averments of the petition.

A motion for judgment on the pleadings was made by the defendant below, which was granted by the court of common pleas. After the motion was presented, and before the trial court hail ruled thereon, the plaintiff asked leave to file an amended petition, the essential parts of which were as follows:

"Plaintiff says that the defendant, at the time complained of, was a practicing physician in the city of Akron, Summit county, Ohio. That on Or about the 1st day of March, 1921, and continuously therefrom until the 9th day of March, 1922, said defendant, in his capacity as such practicing physician, attended and treated said decedent for general peritonitis and septicemia.

"Plaintiff says that during said period of time the defendant was the only attending physician.

"Plaintiff says that the defendant was negligent, in that, after becoming aware that said decedent was suffering from septicemia and general peritonitis, he wholly and entirely failed to take any steps or prescribe or give any treatment or treatments to allay or correct said disease, or affect the recovery of said decedent therefrom.

"Plaintiff alleges that the defendant was further negligent, in that, after knowing said decedent was suffering from septicemia and general peritonitis, and that after knowing that the life of said Iva J. Triplett was endangered thereby, he nevertheless wrongfully concealed said fact, whereby said decedent and her family were prevented from having and from knowing the necessity of the great care and attention which said decedent's physical condition then demanded and required.

"Plaintiff alleges the fact to be that had the defendant made known the true physical condition of the decedent at the time her condition became known to said defendant, and had the defendant given said decedent, during the time aforesaid, the hospital and medical care and attention which her critical condition then required, the death of the said Iva J. Triplett herein complained of would not have occurred.

"Second cause of action:

"For his second cause of action the plaintiff herein adopts all the allegations contained in his first cause of action, the same as il herein fully rewritten, and says that the defendant herein, at the time complained of, was a practicing physician in the city of Akron, Summit county, Ohio. That on March 1, 1921, said defendant unlawfully and criminally performed an operation upon the decedent, Iva J. Triplett, for the purpose of procuring an abortion or a miscarriage; said operation not being necessary to preserve the life of the said Iva J. Triplett, and said operation being performed without being advised by two physicians to be necessary for that purpose.

"Plaintiff says that said operation immediately caused the decedent to become extremely ill. That said decedent died on March 9, 1921. That the direct and proximate cause of her death was said criminal Operation performed by the defendant, as hereinabove stated, and the negligence complained of on the part of the defendant as alleged in the first cause of action herein contained."

Leave to file same was refused. A motion for 8 new trial was overruled, and upon proceeding in error to the Court of Appeals, that court reversed the judgment of the court of common pleas, and remanded the cause for further proceedings. The Court of Appeals, however, finding the judgment so rendered to be in conflict with the judgment pronounced upon the same question by the Court of Appeals of the Eighth Appellate District, in the case of Koatek, Adm'r., v. Meyer, certified the cause to this court for review and final determination.

Messrs. Rockwell & Grant, for plaintiff in error. Messrs. May, Roetzel, Zesiger & May, for defendant in error.

MATTHIAS J.

For the purpose of considering and determining the question of first importance in this case, we are assuming that the inference rationally and properly may be drawn from the averments of the petition that the alleged criminal operation was performed with the consent of Iva J. Triplett, and, therefore, that she participated in the doing of the wrongful act which caused the injury resulting in her death.

This suit is maintainable only by virtue of the provisions of Sections 10770 and 10772, General Code, which authorize such action in the name of the personal representative on behalf of the next of kin of one whose death was caused by wrongful act in any case where such person whose death was so caused would have been entitled to maintain an action to recover damages for the injury had death not ensued. Had Iva J. Triplett not died from the injury alleged to have been caused her by said illegal operation, would she have been entitled to recover damages from the defendant for the injury resulting from such operation? That is the specific question presented. It must be conceded that if she consented to such illegal operation she thereby participated in the wrongful act, and under our statute became an aider...