Joy Ex Rel. Lewis v. Brown , 173 Kan. 833 ( 1953 )

Wedell, J.

(concurring specially): I concur in the result.

“The abortion statute is designed for the protection of the general public interest, and not for the special protection of a class, as primary object.” (Herman v. Julian et al., 117 Kan. 733, 734, 232 Pac. 864.)

Assuming the foregoing quotation from the opinion in the Herman case, supra, is dictum it is founded on sound doctrine and is supported by ample authority. The abortion statute being criminal in character the state may redress the wrong to society by criminal proceedings against the person who performs the illegal act. This, however, does not mean that a woman on whom an operation is performed, or her heir, is, therefore, without redress.

This is a civil action to recover damages. From the mere fact the operation was illegal, and irrespective of whether the deceased could have given a valid consent thereto, it does not follow the illegal act itself constituted the proximate cause of the damage sustained. Nor is the instant action based on such a theory. The petition alleges:

“. . . the direct and proximate cause of death of Joy M. Joy was the said unlawful, criminal operation performed by the defendant in the grossly careless, negligent and unskillful manner as hereinbefore alleged.” (Italics inserted.)

The burden, of course rests on plaintiff to prove the negligence she alleges as constituting the proximate cause of the wrongful death.

Irrespective of whether the deceased woman’s consent to the illegal operation was valid she did not consent to the negligent performance thereof. For that negligence which was the proximate cause of death defendant remains liable in a civil action for damages.

Parker, J., concurs in the result.