Taylor v. Rice
| Decision Date | 31 March 1886 |
| Citation | 27 F. 264 |
| Parties | TAYLOR v. RICE. |
| Court | United States Circuit Court, District of Indiana |
Cyrus McNutt and Delana E. Williamson, for plaintiff.
J. W Gordon and McDonald, Butler & Mason, for defendant.
By the form of his complaint the plaintiff assumed the burden presumably difficult, of showing that the plaintiff went before the grand jury of Parke county and maliciously testified falsely, and procured others to testify, that the defendant, upon the person of the woman named, had produced a criminal abortion and miscarriage, resulting in the death of both woman and child, and by means of said false evidence had maliciously, and without probable cause, procured the indictment of the plaintiff for the crime of abortion.
There is a clear lack of evidence to support this charge as made indeed, if a strict construction of the complaint had been insisted upon at the trial, the court would probably have deemed it proper to direct a verdict for the defendant; but the case having been argued before the jury upon the conceded theory that the second paragraph of the complaint contains a separate charge against the defendant of wrongful assistance to the prosecution, rendered after the indictments had been found, it was deemed proper to submit that issue, and the others with it, to the consideration of the jury. Defendant's counsel now insist, and I agree with them, that this charge is not well laid, because it is not shown that the alleged assistance was rendered maliciously and without probable cause. If, however, there were no other objection to the verdict, I should be inclined to hold the defendant estopped to make this one. But limiting the case, as I think it clearly must be limited, to the charge of assistance at the trial, I should feel constrained to declare the damages excessive. Even, if the evidence were sufficient to support the charge that the defendant originated as well as aided the prosecution, the award would, under the circumstances in proof, be well up to, if not above, the line which would challenge consideration whether or not the jury had been swayed by passion, resentment, or other undue influence.
That this verdict was not the result of a dispassionate consideration of the evidence seems to me altogether probable; especially in the light of some of the arguments and appeals made to the jury. I allude more particularly to the denunciation of the defendant on account of the alleged desecration of the grave and body of the deceased woman, opened for the purpose of the official post mortem examination. This sacrilege, and the outraged feelings of the husband and son and kindred, as if the plaintiff stood for them all, and other considerations equally irrelevant to the rights of the litigants, were woven into multifarious appeals of such eloquence and force as to leave little room for wonder at the result. I am not to be understood as implying by the allusion made to this subject a criticism or reflection upon the conduct of counsel, nor as resting my decision upon this ground. I simply recognize the facts as they occurred, and find in them strong support for my conclusion, that for other reasons the verdict returned is not right.
In addition to the reasons stated, I am of opinion that the defendant had reasonable cause to believe the plaintiff guilty of the crime for which he was indicted. Omitting details, I will refer only to the principal facts, or outlines of the case, as it was known, and must, or at least may reasonably be supposed to, have appeared to Dr. Rice. He was called to see Mrs. N. in consultation with Dr. Cross. Her previous symptoms, so far as then deemed material by her or her husband, and by Dr. Cross, were presumably made known to him. What they were is not disputed, and that they, in the main, indicated a state of pregnancy commenced in the previous August is quite clear. Mr. and Mrs. N., however, did not entertain, perhaps were unwilling to accept, that view of the case; and Dr. Cross, too, was uncertain. After a careful examination, no matter now just how made, Dr. Rice became certain upon the point, and informed Mr. and Mrs. N. of his conclusion; told her she had no organic trouble, and only needed to keep up courage, and she would be all right in a few months. Without doubt Dr. Rice believed the pregnancy to be with a live child. He discovered and was told nothing to raise the slightest doubt on that point; nothing of an unusual flow of water, nor of bad odors. The woman, for weeks, had suffered greatly with more or less constant nausea and vomiting, and was considerably weakened, and much of the time kept to her bed; but when Dr. Rice left he did not apprehend-- saw no cause to apprehend-- danger. No reason is apparent why Dr. R's view of the case should not have been accepted by Mr. N. as true, and as a sufficient explanation of the failure of previous treatment to afford relief from the nausea; but upon his next visit, two days afterwards, Dr. Cross was discharged, and on the evening of the same day the plaintiff and his father arrived, in obedience to a summons sent immediately after Dr. R.'s visit. The plaintiff and father were informed at once, it seems, of an unusually large discharge of water, which should have occurred two or three weeks before, and of bad odors from the woman's person,-- facts which, strangely, were not told to Dr. Cross or Rice; and, upon examination, became convinced of the presence in the womb of either a false conception or a dead and decayed fetus. The claim, also, to have found the woman so far gone as to fear she would not live till morning, and, through motives of timidity, as they were strangers, did nothing for her the first night; and notwithstanding the only proper course, if there was a dead and decomposing fetus in the womb, was to proceed at once to remove it, for several days did nothing, as is claimed, but give brandy as a stimulant, and a drug to allay nausea, in the hope, apparently without foundation, that she might regain strength to expel the fetus without artificial aids. Finally, with the aid of Dr. Challenger, the elder Taylor having withdrawn from the case, the plaintiff resorted to the use of instruments,-- what they were and just how used is put in some doubt,-- and after the third operation accomplished the abortion. To what extent the fetus was decomposed, and of what age at its death, there were differences of opinion. For two or three days after the operation the woman seemed to regain strength, and to be likely to get well, but at or near the end of a week she died. The plaintiff reported as the cause of death pyaemia in the lungs, resulting from blood poison caused by the dead fetus.
The death and its circumstances and cause became the subject of talk and discussion in the neighborhood. Dr. Rice, upon hearing of the death, declared that the Taylors had murdered the woman, and ought to be prosecuted, and pronounced the claim that the fetus had been long dead a lie. About this time the plaintiff wrote to Dr. Cross the letter which was put in evidence. That letter contains a statement which implies that the plaintiff was justified in producing the miscarriage in order to relieve the woman from nausea and vomiting which threatened her life; but this is followed immediately by the assertion that the fetus was dead and greatly decomposed. At the instance of Dr. Cross, supported or encouraged by Dr. Rice, the acting coroner caused a post mortem examination on the woman's body, and of the remains of the child. This examination was made by three physicians, assisted by Drs. Cross and Rice. They examined the woman's lungs, found them healthy in appearance, without a sign of pyaemia; but in the womb and adjacent parts they found inflammation sufficient to account for the death; and all have declared on oath their belief that the death was the direct result of that cause. If, in fact, the fetus had been dead so long as to become decayed, or if it was dead before the plaintiff commenced his effort to remove it, there is no apparent reason, and none has been suggested, why the plaintiff should have disputed the facts stated by these physicians, or that the cause of death was as they claim. Nevertheless, the plaintiff caused the body to be taken up a second time, and examined by a number of physicians of his own school, and, by the aid of the microscope, claimed to have found in the lungs evidence of pyaemia sufficient to have caused the death, and that in the womb and adjacent parts there was not such inflammation as to cause death. On the trial the plaintiff was corroborated in respect to this theory by one of his assistants at the examination. The others did not testify. It may be that Dr. Rice knew or had heard of other facts, circumstances, or statements than those mentioned, but, if so, not of such significance as to change essentially the nature of the case as outlined. While these facts and circumstances fall short of showing, beyond reasonable doubt, a case of criminal abortion, they are such as to evoke the gravest suspicions; and, in my judgment, strong enough to justify any good citizen, if he chose to do it, in moving the grand jury to an investigation; and, an indictment having been returned by that body, to warrant him in giving assistance to the prosecution.
New trial granted.
NOTE.
An action will lie for malicious prosecution against a party who causes the arrest of a person for the purpose of ascertaining who perpetrated an offense. Johnson v. Ebberts, 11 F. 129. The malice necessary to sustain such an action is not express malice, a specific desire to vex or injure another from malevolence or motives of ill will, but the willful doing of an unlawful act, to the prejudice of another. Johnson v. Ebberts, ...
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