True v. Older
Decision Date | 19 November 1948 |
Docket Number | No. 34682.,34682. |
Parties | TRUE v. OLDER et al. |
Court | Minnesota Supreme Court |
Appeal from District Court, Martin County; Julius E. Haycraft, Judge.
Action by Helen J. True, special administratix of the estate of Ilene Eagen, deceased, against Raymond Older and another for wrongful death. Demurrers to plaintiff's amended complaint were interposed by both defendants and the demurrers were overruled and Raymond Older appeals, and the question involved was certified as important and doubtful.
Affirmed.
Leo J. Seifert, of Fairmont, for appellant.
Paul C. Cooper, of Fairmont, and Morse & Frundt and Eldon J. Spencer, all of Blue Earth, for respondent.
This is an action for death by wrongful act, brought for the benefit of the seven-year-old daughter of Ilene Eagen, the deceased. Recovery is sought for an abortion committed on the person of Ilene and for neglect after the operation, as a consequence of which her death occurred. Demurrers were interposed by both defendants on the ground that the amended complaint failed to state a cause of action. They were overruled, and the question involved was certified as important and doubtful. Defendant Older alone has appealed. He will hereinafter be referred to as the defendant.
M.S.A. § 573.02, the death-by-wrongful-act statute, provides:
"When death is caused by the wrongful act or omission of any person or corporation, the personal representative of the decedent may maintain an action therefor if he might have maintained an action, had he lived, for an injury caused by the same act or omission."
1. Defendant contends that plaintiff cannot recover, first, because her decedent was guilty of fornication from which pregnancy resulted, making desirable the attempted abortion, for, says defendant:
With these contentions we cannot agree. It is true that without a pregnancy there could have been no abortion, but it does not follow that because there was a pregnancy caused by illicit relations there must be an abortion. Fornication and abortion are separate acts. Consent or voluntary submission to fornication is no consent to abortion. If after pregnancy defendant had induced decedent to become intoxicated or had given her drugs so as to render her unconscious and while she remained in that state of unconsciousness he had performed an abortion or procured someone else to do so, could anyone say that she was barred from recovery because the pregnancy was the result of illicit relations? We think not. Abortion would be equally wrong and equally unlawful whether the pregnancy was the result of licit or illicit relations.
Secondly, defendant claims that plaintiff is barred because the complaint does not state that decedent did not submit to the abortion, and, he argues, consent is not synonymous with submission. Therefore, defendant argues, an allegation that she did not "freely and voluntarily consent" to the abortion does not mean that she did not submit to it. This contention is untenable for two reasons. Justification is a matter of defense and need not be negatived in the complaint. 1 C.J., Abortion, § 123; 1 C.J.S., Abortion, § 41; Miller v. Bayer, 94 Wis. 123, 127, 68 N.W. 869, 871, where the Wisconsin court said:
"* * * If the act was justifiable, clearly, in an action for damages, the facts in that regard are a matter of defense; hence not necessary to be alleged in the complaint."
We believe that the same rule applies where defendant claims the unlawful participation of plaintiff (or plaintiff's decedent in this case) as a bar to recovery.
2. In the second place, in order to charge plaintiff's decedent with wrongful conduct that would bar recovery on any theory, it must be shown that submission to the abortion was voluntary. If defendant forced plaintiff's decedent to submit to abortion by threats of such a serious nature as to destroy her own volition, there would be no consent at all and consequently no wrong on her part. Restatement, Torts, § 58. If her mental condition was so affected that she was prevented from giving her voluntary consent, there would likewise be no wrong committed on the part of plaintiff's decedent, and it would avail defendant nothing to claim that such consent had been given or that she had submitted to the operation. 6 C.J.S. Assault and Battery, § 16; Mohr v. Williams, 95 Minn. 261, 104 N.W. 12, 1 L.R.A.,N.S 439, 111 Am.St.Rep. 462, 5 Ann.Cas. 303. Prosser, Torts, 119, 122; Restatement, Torts, § 59.
The complaint contains an allegation of duress. It also alleges:
Conceding that an allegation of duress alone is not sufficient without stating facts upon which the duress is based, still this complaint does state facts sufficient to constitute a cause of action. The complaint is entitled to liberal construction. M.S.A. § 544.16; Chamber of Commerce v. Wells, 96 Minn. 492, 105 N.W. 1124, where we held that the complaint was sufficient on a demurrer, and that if it was insufficient the remedy was by motion to make more definite and certain. We believe that is likewise true here.
Many of the allegations in the complaint are conclusions of law, but eliminating all conclusions of law would still leave the complaint barren of all allegation or admission that plaintiff's decedent consented to or voluntarily participated in or submitted to the abortion. We have no right to read into the complaint such admission. Consequently, it is not necessary for us to determine whether consent to or voluntary participation in the abortion by plaintiff's decedent would bar recovery. On this question the authorities are in hopeless conflict. Holding that consent is a bar are the following authorities: Hunter v. Wheate, 53 App.D.C. 206, 289 F. 604, 31 A.L.R. 980; Nash v. Meyer, 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 Wash. 429, 1 P.2d 320. Holding the exact opposite are Milliken v. Heddesheimer, 110 Ohio St. 381, 144 N.E. 264, 33 A.L.R. 53; Martin v. Hardesty, 91 Ind.App. 239, 163 N.E. 610; Miller v. Bayer, 94 Wis. 123, 68 N.W. 869; Lembo v. Donnell, 117 Me. 143, 103 A. 11. Authors of texts are likewise in disagreement. Compare, 1 Cooley, Torts (4 ed.) § 97, and Prosser, Torts, 117, 123.
3. There is another, and probably more persuasive, reason why the demurrer should be overruled. In addition to alleging the commission of the abortion, the complaint contains the following allegations:
These allegations bring the case within the rule stated in Depue v. Flatau, 100 Minn. 299, 111 N.W. 1, 8 L.R.A., N.S., 485. See, also, Prosser, Torts, 120.
In the case of Androws v. Coulter, 163 Wash. 429, 1 P.2d 320, the action was brought by the administratrix of the estate of a person who died following an abortion. The action seeks to recover for expenses incurred in the last sickness and burial of decedent. The court follows the rule that no recovery can be had for damages resulting from the abortion, but holds that the complaint, in addition, alleges that subsequent to the abortion the decedent did not receive proper care, saying (163 Wash. 432, 1 P.2d 321):
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