Szadiwicz v. Cantor
| Decision Date | 24 November 1926 |
| Citation | 257 Mass. 518,154 N.E. 251 |
| Parties | SZADIWICZ v. CANTOR. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Worcester County; E. B. Bishop, Judge.
Action of tort by Waclaw Szadiwicz, administrator, against Ida Cantor for the death and conscious suffering of plaintiff's decedent. Verdict for plaintiff, and defendant excepts. Exceptions sustained, judgment for defendant.
J. M. Hoy, of Boston, and M. F. O'Connell and W. L. Blake, both of Fitchburg, for plaintiff.
W. M. Quade, of Gardner, for defendant.
[1][2] The jury could find that on February 6, 1924, the defendant performed an operation upon the plaintiff's intestate causing an abortion which not only destroyed embryonic life but brought on general septicemia, a germ disease, from which after a period of conscious suffering at a hospital where on February 11, 1924, she went for medical treatment, the intestate died February 26, 1924. The medical evidence tended to show and it could be found that the defendant's mode of treatment was very dangerous and surgically unsound because of the use of ‘nonsterile instruments' which would be an adequate cause for the introductionof the germ into the intestate's system. The first count alleged that the defendant assaulted the intestate. The second count is for conscious suffering caused by the defendant's negligence. The third count further alleges that the intestate's death was caused by the defendant's negligence, while the fourth and fifth counts charge that the conscious suffering and death were due to the defendant's willful and wanton misconduct. The defendant seasonably moved for a directed verdict and requested the judge to rule that on all the evidence the plaintiff could not recover, that the participation of the intestate in a criminal act bars recovery, and that the intestate having voluntarily consented to the act she assumed the risk. The motion and requests were denied and the jury returned a verdict awarding damages for her conscious suffering and death. The exceptions to the instructions, not having been argued, are treated as waived and the principal question is whether the motion was rightly denied. The act of the defendant in causing the miscarriage, followed by death, is punishable, under G. L. c. 272, § 19, by fine and imprisonment. If the decedent had survived, and the defendant had sued for services. the action could not have been maintained. Hall v. Corcoran, 107 Mass. 253, 9 Am. Rep. 30; Myers v. Meinrath, 101 Mass. 366, 3 Am. Rep. 368. The act is made criminal by the statute even if the intestate consented, and it would be unnecessary in an indictment to charge an assault. Commonwealth v. Snow, 116 Mass. 47, 54. It was nevertheless a crime in which the decedent although not an accomplice was a participant. Commonwealth v. Boynton, 116 Mass. 343;Commonwealth v. Brown, 121 Mass. 69. While there are decisions cited by counsel for the plaintiff which seem to hold that actions similar to the case at bar may be maintained (Courtney v. Clinton, 18 Ind. App. 620, 48 N. E. 799;Adams v. Waggoner, 33 Ind. 531, 5 Am. Rep. 230;Lembo v. Donnell, 116 Me. 505, 101 A. 469;Milliken v. Heddesheimer, 110 Ohio St. 381, 144 N. E. 264, 33 A. L. R. 53;Miller v. Bayer, 94 Wis. 123, 68 N. W. 869), it was said by Lord Mansfield in Homan v. Jackson, Cowper, 362, followed in Higgins v. McCrea, 116 U. S. 671, 677, 6 S. Ct. 557,...
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...54 Idaho 283, 31 P.2d 273; Goldnamer v. O'Brien, 98 Ky. 569, 33 S.W. 831, 36 L.R.A. 715, 56 Am.St.Rep. 378; Szadiwicz v. Cantor, 257 Mass. 518, 154 N.E. 251, 49 A.L.R. 958; Bowlan v. Lunsford, 176 Okl. 115, 54 P.2d 666; Martin v. Morris, 163 Tenn. 186, 42 S.W.2d 207; Androws v. Coulter, 163......
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...thus: "There are respectable authorities to the contrary.", relying on, 1 C. J. 313; Szadiwicz v. Cantor, supra, and annotation. Szadiwicz v. Cantor, supra, does not recovery for death in abortion where the woman consented, even though resulting from negligence, not the mere illegality of t......
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Beauvais v. Springfield Inst. for Sav.
...an injury to another, but because the court will not enforce a cause of action founded upon a breach of the law. Szadiwicz v. Cantor, 257 Mass. 518, 154 N.E. 251, 49 A.L.R. 958;Baskin v. Pass. Mass., 19 N.E.2d 30. There was no evidence as to the manner in which the accident occurred other t......
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Miller v. Bennett
...the abortion, on the ground that a party who participates in an illegal act cannot profit by such act. In Szadiwicz v. Cantor, 257 Mass. 518, 154 N.E. 251, 49 A.L.R. 958, it was held that recovery by an administrator for death and conscious suffering of his decedent was barred where the dec......