[No. 22727. En Banc. July 16, 1931.]
ADA M. ANDROWS, as administratrix, Appellant, v.
H. W. COULTER, Respondent. «1»
[1] ACTION (2) - ACTS CONSTITUTING CAUSE OF ACTION - ILLEGAL
ACTS. Under the rule that courts will not aid either party in
litigation growing out of criminal acts, the court will not
maintain an action for the funeral expenses of a woman whose
death followed when she submitted herself to her own criminal
miscarriage, which is punishable by imprisonment in the
penitentiary under Rem. Comp. Stat., SS 2449.
[2] PHYSICIANS AND SURGEONS (9) - LIABILITY FOR
NEGLIGENCE - ACTS CONSTITUTING NEGLIGENCE - PLEADING. A
complaint against a physician to recover for the funeral
expenses of a woman whose death followed a criminal abortion
by defendant, liberally construed, states a cause of action
where, in addition to the criminal acts, it alleges that
defendant abandoned the patient after the operation knowing
that she was suffering from septicaemia and general peritonitis
and failed to treat her therefor and concealed her condition
from her family, and that her death would not have occurred
if she had been given proper care and treatment.
Appeal from a judgment of the superior court for
Thurston county, Wilson, J., entered January 6, 1930,
dismissing an action for malpractice, upon sustaining a
demurrer to the complaint. Reversed.
Frank P. Christensen, for appellant.
Yantis & Brodie, for respondent.
1 Reported in 1 P.2d 320.
430 ANDROWS v. COULTER.
Opinion Per MITCHELL, J. 163 Wash.
MITCHELL, J. - The appellant, Ada M. Androws, as
administratrix of the estate of Gene Raligh, deceased,
by an amended complaint (hereinafter spoken of as the
complaint) against H. W. Coulter, seeks to recover for
certain expenses incurred in the last sickness and
burial of the decedent. The complaint, upon alleging
substantially that the defendant, a practicing physician
and surgeon, unlawfully and criminally performed
an operation upon Gene Raligh for the purpose of
procuring an abortion so negligently and carelessly
that septicaemia immediately resulted therefrom, further
alleges:
"That the defendant was further negligent in that
after becoming aware that said deceased was suffering
from septicaemia and general peritonitis he wholly and
entirely failed and neglected to take any steps or
prescribe or give any treatment or treatments or effect
any recovery of the said Gene Raligh, and that the
said defendant abandoned the said Gene Raligh and
failed to attend her and after knowing that the said
Gene Raligh was suffering from septicaemia and general
peritonitis and knowing that the life of the said
Gene Raligh was in danger thereby, the said defendant
wrongfully concealed the fact whereby the said
Gene Raligh and her family were prevented from having
and from knowing the necessity of great care and
attention which the said Gene Raligh's physical condition
then demanded and required, and that had the defendant
made known the true physical condition of the
said Gene Raligh at the time her condition became
known to him and had the defendant given the said
Gene Raligh the proper hospital and medical care and
attention which her physical condition required the
death of the said Gene Raligh herein complained Of
would not have occurred."
The amended Complaint then alleges the date of the
death of Gene Raligh caused by the operation and the
negligence and carelessness of the defendant in failing
to care for the decedent, by reason of which plaintiff
ANDROWS v. COULTER. 431
July 1931 Opinion Per MITCHELL, J.
paid out and incurred expenses for the recovery of
which this action is brought.
A demurrer upon several grounds was interposed to
the complaint, which, with respect to its being a general
demurrer, the trial court sustained. The plaintiff
refused to plead further, electing to stand on the
complaint, whereupon the court dismissed the action with
prejudice, from which judgment the appeal has been
taken.
Section 2448, Rem. Comp. Stat., provides, in effect,
that one who unlawfully produces a miscarriage of a
woman is guilty of abortion and may be punished by
imprisonment in the penitentiary, and SS 2449, Rem.
Comp. Stat., provides, in effect, that a woman who
submits to her own criminal miscarriage may be punished
by imprisonment in the penitentiary. With these statutes
in mind, counsel for the respondent, in support
of the judgment, rely on the general rule that courts
will not aid either party in litigation growing out of
criminal acts, and that therefore appellant is not entitled
to prevail, because the alleged cause of action is
founded upon an illegal act on the part of the decedent,
whose estate appellant represents.
[1] Upon the question of whether the rule stated
shall be applied in favor of one who performs an abortion,
the woman voluntarily consenting and participating,
there appears to be a conflict of authority, as may
be seen from the cases of Milliken v. Heddesheimer,
110 Ohio St. 381, 144 N. E. 264, 33 A. L. R. 53; and
Szadiwicz v. Cantor, 257 Mass. 518, 154 N. E. 251, 49
A. L. R. 958.
A majority of us are of the opinion that the rule is
applicable in such cases, following such authorities as
the one last above cited, approving the saying of Lord
Mansfield in Holman v. Johnson, 1 Cowp. 341, 98 Eng.
432 ANDROWS v. COULTER.
Opinion Per MITCHELL, J. 163 Wash.
Reprint 1120, followed in Higgins v. McCrea, 116
U. S. 671, 677, 29 L. ed. 764, 766:
"No court will lend its aid to a man who founds his
cause of action upon an immoral or illegal act. If from
the plaintiffs' own stating, or otherwise, the cause of
action appear to arise ex turpi causa, or the
transgression of a positive law of this country, there the court
says he has no right to be assisted. It is upon that
ground the court goes, not for the sake of the defendant,
but because they will not lend their aid to such a
plaintiff."
[2] But the complaint does not simply charge abortion
and the subsequent death of the woman. There
may be some apparent confusion in the allegations of
the complaint, technically considered, but it was not
tested by a motion to make more definite and certain
or any other motion. It was disposed of by a general
demurrer. Section 285, Rem. Comp. Stat., says:
"In the construction of a pleading, for the purpose
of determining its effect, its allegation (s) shall be
liberally construed, with a view to substantial justice
between the parties."
Here, notwithstanding the allegations of negligence
in connection with the criminal operation, there are
allegations that will permit proof, in addition to the
operation performed by the defendant, that, upon
becoming aware that the one upon whom the act was
performed suffered from septicaemia and peritonitis,
he wholly failed and neglected to prescribe for or treat
her, and that he wholly abandoned her, knowing that
she was so suffering, and knowing that her life was in
danger, and without letting her family know of her
true condition; and that, had he made known her true
physical condition at the time it became known to him,
or had he given her proper attention, the death of his
patient would not have occurred. Proof of the facts
thus alleged would establish a cause of action. A
WOODS v. GREENBLATT. 433
July 1931 Syllabus.
physician and surgeon has no more right to abandon his
patient under such circumstances than he would had
she become his patient under ordinary circumstances
and in the best of faith.
The facts stated in the complaint, admitted by the
general demurrer, are sufficient to constitute a cause
of action.
Reversed and remanded, with directions to overrule
the demurrer.
TOLMAN, C. J., BEELER, PARKER, MAIN, BEALS,
HOLCOMB, and MILLARD, JJ., concur.