Nash v. Meyer

• Citation: 31 P.2d 273,54 Idaho 283
• Decision Date: 23 March 1934
• Docket Number: 5945
• Parties: CLYDE W. NASH and JEAN NASH, Husband and Wife, Respondents, v. JOHN S. MEYER, Appellant
• Court: United States State Supreme Court of Idaho

31 P.2d 273

54 Idaho 283

CLYDE W. NASH and JEAN NASH, Husband and Wife, Respondents, v. JOHN S. MEYER, Appellant

No. 5945

Supreme Court of Idaho

March 23, 1934

ABORTION-PHYSICIANS-CIVIL LIABILITY-CONTRACT OF SERVICE-APPEAL AND ERROR-ASSIGNMENTS OF ERROR, WHEN NOT CONSIDERED.

1. Where husband and wife consent to performance of illegal abortion on wife, neither husband nor wife can recover damages from surgeon on ground abortion was negligently performed (I. C. A., secs. 17-1810, 17-1811).

2. In civil action against surgeon to recover damages resulting from abortion, defense that abortion was necessary to save life, and defense that plaintiffs requested performance of illegal abortion, held permissible.

3. Assignments which are not argued in brief, and where no authorities are cited in support thereof, will not be considered.

4. Where husband and wife contended that surgeon knowingly wilfully, and unnecessarily performed illegal abortion without their consent, and therefore was responsible for negligence and all injurious results, defendant's instruction defining liability of surgeon for negligence in diagnosing abortion as necessary, or in performing same, held properly refused.

5. Trial court should give instructions on defendant's theories of case as well as on plaintiffs', where appropriate instructions are presented.

6. Failure of surgeon who performed operation to attend patient after operation, and failure to go to patient's residence therefor, would not constitute negligence, if surgeon did not undertake to treat patient until cured, and contracted to give service only at his office.

7. Surgeon, after performance of operation, is required to continue in attendance after operation only if contract is for unlimited service.

8. In civil action against surgeon to recover damages resulting from abortion, instruction defining defendant's liability for arousing latent or dormant infection or negligently failing to foresee that infection would be so aroused held not improper under evidence.

9. Rule that one guilty of crime is responsible for all consequences is inapplicable if defendant was merely negligent.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. John C. Rice, Judge.

Action for damages for abortion; judgment for plaintiff. Reversed and remanded.

Reversed and remanded; costs awarded to appellant.

W. A Stone and Cleve Groome, for Appellant.

Whether a physician was negligent in making a diagnosis must be determined in the light of conditions existing and facts known at the time thereof, and not in the light of knowledge gained through subsequent developments. (48 C. J. 1126; Staloch v. Holm, 100 Minn. 276, 111 N.W. 264, 9 L R. A., N. S., 712; Gottschall v. Geiger, 207 Mo.App. 89, 231 S.W. 87.)

The testimony shows that plaintiffs requested the defendant to perform the alleged operation because they did not want more children and the defendant was entitled to have the issue thus raised submitted to the jury under proper instructions. The rule is that the courts will not assist one who bases his action on an immoral or an illegal act. (I. C. A., secs. 17-1810 and 17-1811; Libby v. Pelham, 30 Idaho 614, 166 P. 575; McFall v. Arkoosh, 37 Idaho 243, 215 P. 978; Clark v. Utah Const. Co., 51 Idaho 587, 8 P.2d 454; Hunter v. Wheate, 289 F. 604, 53 App. D. C. 206, 31 A. L. R. 980.)

Harry S. Kessler and Hugh N. Caldwell, for Respondents.

"Foreseeableness" of probable damages resulting from a wrongful act is an essential element of actionable negligence (except where act is unlawful and is negligent per se), but it is not an element of casual relation or proximate cause. (Curoe v. Spokane & Inland Empire R. R. Co., 32 Idaho 643, 186 P. 1101, 37 A. L. R. 923; Smith v. Oregon Short Line R. R. Co., 32 Idaho 695, 187 P. 539; 20 R. C. L. 13, sec. 9; 45 C. J. 651, sec. 25.)

By the great weight of authority consent will not avail as a defense in a civil suit for damages for personal injury. This is particularly true where the act is illegal or may result in injury to the person or endanger life. (62 C. J. 1101, sec. 16; Stout v. Wren, 8 N.C. (1 Hawks) 420, 9 Am. Dec. 653; Mozorosky v. Hurlburt, 106 Ore. 274, 198 P. 556, 211 P. 893, 15 A. L. R. 1076; Martin v. Hardesty, 91 Ind. 239, 163 N.E. 610, at 611.)

GIVENS, J. Morgan, Holden and Wernette, JJ., concur.

OPINION

GIVENS, J.

Respondents ' complaint alleges in substance that appellant a physician and surgeon, either knowingly, falsely and unlawfully or negligently and carelessly induced Mrs. Nash to have an abortion performed, as necessary to save her life, when in fact it was not necessary; also, that the operation was negligently performed and that appellant failed and refused to give Mrs. Nash treatment or care when her consequent condition required it, and asks for damages because of the negligent and/or illegal abortion and, for the loss of her health and probable inability thereafter to have other children, and for the loss of the companionship, etc., of the intercepted child, wounded sensibilities and mental anguish and for the amounts spent by respondents for medical care and hospitalization occasioned by her consequent condition.

Appellant interposed a general denial.

The evidence produced by respondents proceeded along the line of showing that the abortion was not necessary to save Mrs. Nash's life; and though scant that the actual performance of the abortion was negligent; that by failure to give Mrs. Nash medical attention subsequent to the operation a condition arose or continued, which, either because of direct contamination from the operation or infection from the after effects of the abortion, or because of an indirectly aroused latent condition resulted in an abscess forming upon the broad ligament, which necessitated two blood transfusions; an operation for the removal of the abscess; and a rather protracted period of convalescence.

The evidence on behalf of appellant sought to establish that the operation was necessary, that it was performed without negligence, and that the abscess on the broad ligament might have resulted from causes other than those connected with the abortion or negligence in connection therewith or failure of the appellant to, after the abortion, give Mrs. Nash medical or surgical attention; and that under his contract of employment appellant was not obligated to give her treatment except at his office in Caldwell, respondents residing in Boise and failing or refusing to go to Caldwell.

The issues and evidence, and appellant's and respondents' respective positions as to the applicable law thus present these respective contentions.

First, that respondents were fraudulently induced by appellant's false statements to consent to and have Mrs. Nash submit to an illegal abortion in consequence of which the defendant would be liable for all injuries resulting from the operation, negligent, or not, that is, the performance of the illegal abortion was negligence per se and hence he would be liable from the mixture of fraud, deceit and illegal act, and likewise liable for any actual negligence, and results therefrom reasonably foreseeable or otherwise.

Second, that the plaintiffs wanted and were willing to have an illegal abortion, and thought that was what was being performed and that defendant likewise knew it was illegal. In this event two conclusions are open, one, that all being cocriminals, no recovery can be had, as urged by appellant, the other that an exception exists in abortion cases and the woman may, notwithstanding her criminal complicity, recover, as urged by respondents. In the first alternative the question of negligence becomes immaterial, in the latter, does the recovery result from the negligence only in the performance of the operation, or from the abortion if the operator was guilty of no negligence?

Third, that the appellant guilty of no deceit honestly believed though mistakenly and/or negligently that the abortion was necessary and so advised respondents; or that it was in fact necessary in which events, the rule of responsibility would be the same as in the case of any legal operation, only for actual negligence as distinguished from statutory, and for foreseeable probable injurious consequences.

The sole grounds for reversal are based on instructions given and refused.

First, the appellant urges that the court erroneously instructed ^[1] that the appellant would be responsible for negligence even though the respondent Mrs. Nash knowingly and intentionally consented to a criminal abortion, on the theory that one who participates in, or consents to, an illegal act may not recover damages in a civil suit, and that the court erred in refusing an instruction offered that such consent if so given would be a bar to recovery. ^[2]

As to respondents' desire for and consent to an illegal abortion, in their case in chief they took the position and produced evidence to show that either the abortion was illegal, or negligently diagnosed as necessary, or negligently performed, and that if the operation was illegal they did not know it or consent to it as such, and consented to the operation only on the theory that it was a legal abortion, necessary to save Mrs. Nash's life, so represented to them by appellant, and they attempted to show that it was not necessary and that appellant deceived them and falsely made them so believe, either because of his negligence in diagnosis, in stating the performance of the operation was necessary, or wilfully performing it, knowing that it was not necessary.

The appellant in his case in chief sought to show that the operation was necessary, and also, that the respondents came to him and wanted the operation, not...