257 Mass. 518 | Mass. | 1926
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 fife 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 “non sterile instruments” which would be an adequate cause for the intro
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. 251, 253. Myers v. Meinrath, 101 Mass. 366. 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, Adams v. Waggoner, 33 Ind. 531, Lembo v. Donnell, 116 Maine, 505, Milliken v. Heddesheimer, 110 Ohio St. 381, Miller v. Bayer, 94 Wis. 123; it was said by Lord Mansfield in Holman v. Jackson, Cowp. 341, 343, followed in Higgins v. McCrea, 116 U. S. 671, 686, that “No court will lend its aid to a man who founds his cause of action upon an immoral or
So ordered.