Morrison v. State

• Decision Date: 06 October 1952
• Docket Number: No. 21750,21750
• Parties: MORRISON v. STATE.
• Court: Missouri Court of Appeals

Page 97

252 S.W.2d 97

MORRISON v. STATE.

No. 21750.

Kansas City Court of Appeals, Missouri.

Oct. 6, 1952.

Hayden C. Covington, Brooklyn, N. Y., Luther W. Adamson, Kansas City, for appellant.

Horace Warren Kimbrell, Hilary A. Bush, Kansas City, for respondent.

SPERRY, Commissioner.

This is an appeal from an order and judgment of the Juvenile Court. Upon complaint filed by the chief probation officer, Janet Lynn Morrison, a female infant, 12 days of age was, by the court, found to be a neglected child within the meaning of our statutes, Sections 211.010, 211.300, RSMo 1949, V.A.M.S. The medical evidence established that she was suffering from a dangerous malady of the blood for which there is no known remedy except blood transfusions, to the giving of which her parents refused consent. She was adjudged to be a ward of the court and it was ordered that blood transfusions be administered. The child's father prosecutes this appeal.

The cause was heard on the same day the complaint was filed. The father of the child was in court and gave testimony. He was also represented by able counsel. Although the hearing was summary in its nature, no complaint is lodged on that score. Indeed, the urgent need for prompt action, necessary to save the infant's life, permitted of no legal quibbling or unnecessary delay, according to the medical testimony adduced.

The undisputed testimony, offered by the state in support of the complaint, came from two witnesses: Esther Winkelman, a highly qualified medical doctor, graduate of Kansas University Medical School, of fifteen years experience in the practice of her profession and a member of the staff of three reputable hospitals in this community, who delivered the child and attended her; and Rebecca Henion, medical technician of Research Hospital. Hospital records of laboratory blood tests of the child, from the date of birth on October 8, 1951, until date of trial, October 20, 1951, were introduced into the record.

Dr. Winkelman's testimony was to the effect that she was employed by the child's parents to attend the birth; that delivery was attended with some difficulty but that the child was in good condition; that, after the first day, she developed symptoms of erythroblastic anemia; that there was extreme jaundice and the white count grew progressively lower every day; that this indicates destruction of the red blood cells; that the hemoglobin, on the day of trial, was 30% and the red count was 1,100,000; that this condition indicates that the illness is progressing very rapidly; that if life was to be saved, the baby should have an immediate blood transfusion; that she had notified the parents of this critical situation, and of the need of the above operation, six days prior to the date of hearing; that the parents refused to give their consent thereto, stating that the giving of blood transfusions is contrary to their religious belief and convictions; that she again urged the necessity of the operation on the day prior to trial, telling the father that the child's condition was grave. She stated: 'The child will most certainly die if a transfusion is not done'; that death would probably occur within a week unless a transfusion was given; that if done immediately recovery would be complete; if done a few days later, life might be saved but that the destruction of brain tissue might result in leaving her mentally defective; that life was in danger and a blood transfusion was the only remedy. On cross-examination, she gave the names of four other doctors, qualified in this field of medicine and practicing in this community, with whom she had consulted relative to the child's condition. She stated that each gave it as his opinion that blood transfusion is the only remedy for the child's condition.

Rebecca Henion stated that she had done, or supervised, all laboratory work on the baby since its birth; that it showed every sign of erythroblastic anemia and grew progressively worse, day by day; that a transfusion should have been given on the 13th, when the condition was discovered; that the hemoglobin count on the day of trial was 30%, which is considered to be about the fatal percent; that the procedure at Research Hospital is to transfuse all erythroblastic anemia patients; that the disease follows one of two courses, towit: it either grows progressively worse or progressively better, over a period of time; that transfusions will not be given, at Research Hospital, except with the consent of the parent; that never before, within her experience of eight years, had parents refused consent for a transfusion in such a case.

She identified the laboratory records, which bore out her testimony concerning the blood tests.

Appellant testified to the effect that he was a conservant (minister) of a religious sect known as 'Jehovah's Witnesses'; that he had been informed of the seriousness of the illness from which the baby suffered and was advised by Dr. Winkelman of the necessity for a blood transfusion; that he refused to give consent to the operation; that he based his refusal to give consent on certain Biblical commandments, among them being the following: 'If anyone at all belonging to the house of Israel or the proselytes who reside among them eats any blood at all, against the person who eats blood I will set my face, and I will cut him off from his people; the life of every creature is identical with its blood.' Leviticus 17:10-14, American Translation. He stated that this law is older than the Israelite Nation, because God said to Noah, after the flood: 'But flesh with the life thereof, which is the blood thereof, shall ye not eat. And surely your blood, the blood of your lives, will I require; at the hand of every beast will I require it, and at the hand of man; even at the hand of every man's brother will I require the life of man.' Genesis 9:4, 5.

It is noted that, immediately following the first above quoted passage of scripture, there follows an admonition against the eating of the flesh of a creature which died 'of itself,' or whose flesh was 'torn by beasts.' With the interpretation of these Biblical injunctions we are not concerned. Courts leave such matters to the conscience of the people. This case is one instituted by the State on the authority of a statute, the provisions of which are in complete harmony with the applicable principles of the common law. See Black-stone, Book 1, Section 447.

No attack is made on the sufficiency of the complaint; and it is sufficient. State v. Farrell, Mo.App., 237 S.W.2d, 493, 495.

Appellant contends that this case is not moot and dedicates a substantial portion of his brief to that proposition. Respondent does not insist on a ruling on that point, but comments on the fact that the question of whether the case is moot does appear on the face of the record. Because the issue is waived by respondent we shall not discuss it at length. In a very recent case, involving identical issues to those here presented, the State seriously contended that the appeal should be dismissed on the grounds that the case was moot. The Illinois Supreme Court said that, because the issue presented was of substantial public interest and that it was desirable that an authoritative determination be made for the future guidance of public officers in probably recurring cases, appeal should not be dismissed. Another reason given by that court for refusal to dismiss was that an appellate decision would tend to clarify the rights of parties involved in the event a damage suit should be brought, based upon the fact that the operation was performed without the consent of the parents. People ex rel. Wallace v. Labrenz, 411 Ill. 618, 104 N.E.2d 769, 772, 773. On the above decision, and the authorities there cited, we hold that the appeal should not be dismissed.

Appellant, in his brief, vigorously urges that his rights, as guaranteed by the State and Federal Constitution, have been unlawfully invaded because the order complained of violates his right of religious freedom. No such question was raised or presented in the trial court at any time. That being true, the general rule is time. cannot be presented on appeal. Lieber v. Heil, 325 Mo. 1148, 30 S.W.2d 143. To that rule there is an exception, namely: Where, on the whole case, some provision of the constitution was either directly or by inexorable implication involved in the rendition of the judgment and decided against appellant. Lohmeyer v. St. Louis Cordage Company, 214, Mo. 685, 690, 113 S.W. 1108. That exception is not applicable here.

In the case at bar the question presented is: Does the State have the power, under the above-mentioned statute, to take the custody of an infant child from its parents for the purpose of preserving its life? The question of the right of religious freedom of appellant is in no sense involved. This proceeding in no wise affects the right of appellant to believe, religiously, as he professes to believe, nor does it affect his right to practice his religious belief. It was not ordered that he eat blood, or that he cease to believe that the taking of blood, intravenously, is equivalent to the eating of blood. It is only ordered that he may not prevent another person, a citizen of our country, from receiving medical attention necessary to preserve her life.

The U. S. Supreme Court has held that the regulation, or suppression, of religious practices, is not an invasion of religious belief and opinion, Reynolds v. United States, 98 U.S. 145, 166, 25 L.Ed. 244; and in Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 166, 167, 168, 170, 64 S.Ct. 438, 442, 88 L.Ed. 645, it was said: 'The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death. * * * A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity...