Wells v. New England Mutual Life Insurance , 191 Pa. 207 ( 1899 )

Opinion by

Mb. Justice Gbeen,

We are clearly of opinion that the learned court below should have affirmed the sixth point of the defendant and directed the jury to render a verdict for the defendant. There was no dispute about the facts of the case nor any question as to the law. That the deceased woman voluntarily submitted to an operation for abortion upon her person, and that she caused it to be done by her own importunity to that end, and that she died from the direct effects of the operation, were established by the overwhelming testimony in the case,- without the least shade of contradictory evidence. The substance of all this was conceded in the charge of the court to the jury, and the judge instructed the jury that if they believed that the operation was submitted to voluntarily, without any justifiable medical reason, they should find for the defendant. The court affirmed the first and second points of the defendant which presented the subject in that aspect alone. But the learned court intimated that there might have been some other intervening cause that produced the death of the party, and submitted -that question to the jury thus: “ Did any other cause, taking in consideration where it was alleged it was performed, intervene, which produced blood poisoning or septicsemia and caused death ? If it did, the company will have to pay the amount of this policy. If it did not, you should return a verdict in their favor.” As there was not the smallest fragment of testimony as to the existence of any other cause of the death of the insured than the abortion, it was grave error to submit such a question to the jury. It only tended to mislead them and direct their attention to a false issue.

There was no question that the policy was a Massachusetts contract, and was governed by the law of that state. It was also shown that the Supreme Court of that state had decided in a ease almost, precisely similar to this that there could be no recovery on a policy of life insurance upon the ground of public policy if death results from the insured having voluntarily submitted herself to an illegal operation, known to her to be dangerous to life, with intent to cause an abortion, without any justifiable medical reason: Hatch v. Mutual Life Ins. Co., 120 Mass. 550.

The testimony in the present case proved conclusively and without the least contradiction that the insured procured the operation for an abortion to be performed upon her person, and that she died in direct consequence of the operation. Dr. Crawford testified on this subject as follows: “ She told me in the mean time that she had undergone an operation, she had an abortion. . . -. She told me that it was done in Nanticoke one week, I think, or about one week, prior to that time; that it was done by the insertion of an instrument into her womb. She told me too that several previous attempts had been made by the same person to produce the abortion; that those attempts had failed. At the time she mentioned (a week before) she had again visited the abortionist and he then performed a different operation, he did what he called dilating her womb, that is introduced in and forced it open.” He also testified that he told her she would certainly die, and she replied, “ Oh, no, 1 am not going to die. I have had as many as six abortions, or had an abortion produced as many as six times, and I have always gotten well, and I will now.” She repeated a similar statement in the presence of Mrs. Harvey, when she said, “ Oh, pshaw, I am not going to die; I have had this done two or three times before,” and to Mr. Whalen, who testified, “ Well, she said she had that done several times before, that she would get over it; ” and to Mr. Davison, who testified that she said, “ She would not die, that this had. been done before and she had always recovered.”. To Dr. Stoeekel, who delivered the foetus, she named the person who performed the operation, saying it was a Dr. Dan, of Nanticoke. She was asked: “ Q. What did she say about Dr. Dan, if anything ? A. She said that he had performed several operations which were not successful. Q. On her? A. On her. And she asked me, to use her own words, if I thought he hadn’t made a botch of it. . . . Q. Whether or not she told you how many times she had been down to see Dr. Dan ? A. She spoke of two or three times.” Dr. Stoeekel also testified that she did not discover any malformation of the womb, and when asked whether she discovered any medical reasons for the abortion, replied, “ I didn’t discover anything of that sort.” Dr. Crawford testified directly that she died from the effects of an abortion. In addition to this the medical testimony all showed that the conditions resulting from an abortion were present and that her death was the consequence of those conditions.

Against all this testimony there was not a particle of evidence in contradiction. There was not so much as a suggestion that there was any medical occasion for the operation, and the court was in serious error in submitting such a question to the jury. It was not necessary to establish by specific proof that there was no such necessity, because the whole of the testimony disclosed the purpose of the deceased to have the operation performed in order to get rid of an illegitimate foetus, but Dr. Stoeckel did testify that she could not discover any medical reasons for the abortion.

In the Hatch case the Supreme Court of Massachusetts decided that there could be no recovery in such circumstances on the ground of public policy, saying: “We are of opinion that no recovery can be had in this case, because the act on the part of the assured causing death was of such a character that public policy would preclude the defendant from insuring her against its consequences ; for we can have no question that a contract to insure a woman against the risk of her dying under or in consequence of an illegal operation for abortion would be contrary to public policy, and could not be enforced in the courts of this commonwealth.” We see no reason to question the soundness of this proposition, and it has our approval. As we have a criminal statute imposing severe punishment for the perpetration of the crime of abortion, it follows that our own public policy corresponds with that pronounced by the Supreme Court of Massachusetts. But in addition to this the offense is a crime at common law. In 1 Whart. on Criminal Law, section 592, it is said, “ At common law the destruction of an infant unborn is a misdemeanor supposing the child to have been born dead, though if the child die subsequently to birth from wounds received in the womb it is homicide.”

In the case of Mills v. Com., 13 Pa. 633, we said: “ Miscarriage, both in law and philology, means the bringing forth the foetus before it is perfectly formed and capable of living; and is rightfully predicated of the woman, because it refers to the act of premature delivery. The word abortion is synonymous and equivalent to miscarriage in its primary meaning. It has a secondary meaning in which it is used to denote the offspring. But it was not used in that sense here, and ought not to have been. It is a flagrant crime at common law to attempt to procure the miscarriage or abortion of the woman, because it interferes with and violates the mysteries of nature in that process by which the human race is propagated. It is a crime against nature which obstructs the fountain of life and therefore it is punished.” In 1 Whart. on Criminal Law, sec. 599, it is said, “ All parties concerned in the offense are responsible, whatever may be the part they take.” We do not think it can be questioned that' the woman who solicits the commission of the offense, and submits her body for its perpetration, can be regarded as other than a participant in its commission, and is therefore criminally responsible. Viewed in that light in the present instance, the deceased comes directly within the operation of the prohibitory clause of the policy, for she was actually engaged in the violation of the criminal law of Massachusetts, where the contract was made, and of Pennsylvania, where she was at the time the offense was committed. The act was also highly immoral and illegal, as well on her part as on the part of the person who performed the operation, and therefore it would be contrary to public policy to permit a recovery. Upon the whole case it was the plain duty of the court below to direct a verdict for the defendant.

The case of Morris v. Life Assurance Co., 183 Pa. 572, has no application, as its controlling facts are entirely different.

Judgment is reversed and judgment is now entered in favor of the defendant.