Wells v. New England Mutual Life (Pennsylvania): (April 24, 1899
For a chronological, annotated timeline of all the 19th century cases that mention "buggery," "crime against nature," or "sodomy" see:
Timeline: Published U.S. State Appeals Case Reports, 1800-1899
The following legal case is one of the 19th century cases those that mention "buggery," "crime against nature," or "sodomy".
Published Decision of the Supreme Court of Pennsylvania
WELLS V. THE NEW ENGLAND MUTUAL LIFE INSURANCE COMPANY
George A. Wells, Administrator of Helene Roberts, deceased, now to the use of John Welles Hollenback and L. D. Shoemaker v. The New England Mutual Life Insurance Company of Boston, Massachusetts, Appellant.
Life insurance—Public policy—Abortion.
Where a policy of life insurance provides that it shall be void if the insured dies in consequence of any violation of, or attempt to violate, any criminal law of the United States or of any state or county where the insured may be, it would be contrary to public policy to permit a recovery on a policy of life insurance, 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. In an action on a policy of life insurance where the uncontradicted testimony is that the insured died from the results of an abortion to which she had voluntarily submitted herself, without any justifiable medical reason, it is grave error for the court to submit to the jury the question whether there was any other cause of death than the abortion, and whether there was any medical occasion for the operation.
Argued April 11, 1899. Appeal, No. 61, Jan. T., 1899, by
defendant, from judgment of C. P. Luzerne Co., May T., 1895,
No. 99, on verdict for plaintiff. Before STEKRETT, C. J., GBEEK,
MITCHELL, DEAN and FELL, JJ. Reversed.
Assumpsit on a policy of life insurance. Before LYNCH, J.
On August 13, 1891, Helene Roberts, an unmarried woman, twenty-seven years old, took out a policy of life insurance in the defendant company. On August 19,1891, she assigned the policy to John Welles Hollenback and L. D. Shoemaker, the use plaintiffs, to secure them for certain loans which they had made to her. On November 26, 1892, she died, being still un
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married. Proofs of deaths were regularly furnished the defendant
showing the death to have resulted from " peritonitis and
septicaemia, the result of abortion." The company refused payment,
and thereupon George A. Wells took out letters of administration
on the estate of the assured, and brought suit to the
use of the assignees of the policy.
The case has been tried three times in the lower court and
has been before this Court on appeal once before, reported in
187 Pa. 166.
The policy provided that it should be void if the insured died
in consequence of any violation or attempt to violate any criminal
law of the United States, or of any state or country in which
the insured might be.
The facts appear by the opinion of the Supreme Court.
The court charged in part as follows:
There is no sworn testimony in the case to show when the
operation or the abortion was committed, or by whom it was
committed. The nearest approach is the testimony of Dr. Crawford,
in his deposition, in which he says that when he went into
the room where Miss Eoberts was lying dangerously ill, he at
once recognized from the odor in the room that there had been
an abortion, or a miscarriage. But there is no sworn testimony
whatever that any person used any illegal means to procure this
abortion. I use the word sworn with care, gentlemen. [The
testimony rests principally upon the alleged admission of Miss
Roberts. This presents two inquiries which should be submitted
to you. First, did she make the admissions which have
been sworn to ? Not whether they are true, but did she make
them ? She was not under oath, but very ill.] [5] It is testified
to by Dr. Crawford, Dr. Stoeckel, Mrs. Harvey, the mistress
of the boarding house, Mr. Whalen, and Mr. Davison, the
alderman. It is a question for you to decide, not for the court.
Where it is clearly or satisfactorily proved to the jury that an
admission or statement was made by a person it should have
weight, but you will keep in mind too that all verbal statements
or admissions when repeated by another are liable to change,
by dropping a word here, or adding one there. The weight of
the evidence, indeed all of the evidence submitted, tends to show
that this unfortunate woman did make certain statements as to
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her condition, and as to how it was brought about. [If you
conclude, after an investigation of this matter, that she did not
make any statements of the kind charged you may stop there.
But if you conclude that she did make the statements, or substantially
the statements testified to, you will take the next
step. Were they true ?] [6] There is no sworn evidence whatever
that Dr. Dan, as he is called, performed an operation upon
this woman, either criminal, legal or illegal. There is the statement
which it is alleged Miss Roberts made that Dr. Dan performed
the operation. As to this you will inquire. [Take the
condition of the woman as she was, as she has been shown to
you by the evidence, the state of her suffering and illness. Do
you believe from the evidence if she did make the statement it
was true, and that it was Dr. Dan at Nanticoke who performed
the operation?] [7] She had been there several times before
and he had been unsuccessful, and finally he had made a botch
or a bungling job of it, to use the doctor's words. [No person
has testified that he saw the woman in Nanticoke, or how
she was able to return to Wilkes-Barre. You will take all these
matters in consideration in arriving at a decision. Suppose,
gentlemen of the jury, you answer these two questions in the
affirmative: First, that the operation had been performed upon
her in Nanticoke, and next that such statement is true.] [8]
The next question for you to pass upon will be, was there sufficient
medical reason for performing the operation? Because
as stated by both gentlemen, and by the doctors, an abortion is
simply the premature birth of a child, and there may be many
accidental or legal abortions, in other words, abortions which
are not criminal. From the evidence in this case do you believe
that this woman, unmarried, voluntarily submitted herself
to have an abortion performed, without justifiable medical
reasons for so doing? The stress of the case is there. Now,
what evidence is there upon this question ? At the time Dr.
Guthrie examined Miss Roberts, in August, 1891, a year and
about three months prior, the organs and parts of the body examined
by him were in good condition. So far as appears in
the case, from that time up to the time of the unfortunate death,
there was no medical or surgical examination of the woman.
You have the fact that the woman was unmarried; it has not
been disputed that she was pregnant, with child, the foetus being
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about three months of age at the time of the delivery. It is not
necessary to prove by direct and positive evidence that there
was a medical necessity for the operation. If you find in the
case indirect and circumstantial evidence which satisfies you
that there was no justifiable or good medical reason for it, you
should find a verdict in favor of the defendant company. There
is some medical evidence in the case. Dr. Crawford in his deposition
has testified as follows: " Q. Could the lacerations of the
womb as described by Dr. Kirwin have been produced by an
abortion other than a criminal abortion ? A. Well, perhaps,
that may be a hard question to answer. Lacerations of the
womb sometimes occur from spontaneous delivery, but usually
not at an early period, at full time. Where the foetus is large
the womb is sometimes ruptured, but I don't think that, in delivery
at an early date. I would say, however, if it is proper,
that the condition, the lacerations that Dr. Kirwin described
would correspond fully with the description which she gave to
me of the operation that had been produced—the violence that
was done to her womb at the time of the operation." It is not a
question of the violence which was done to the womb, or whether
she died in consequence. The question is, does the fair weight of
the evidence satisfy you that there was a medical reason for this
operation ? Again, Dr. Stoeckel testified substantially that she
was unable to give an opinion or would not give an opinion. Upon
a hypothetical question put to Dr. Guthrie, called by the defendant,
he stated from the facts submitted to him he was unable
to give an opinion. Dr. Bullard and Dr. G-uthrie gave what in
their judgment were conditions existing in a female, pregnant,
which would justify or give good medical reasons for an abortion.
One, as I remember it, is the presence of Bright's disease
of the kidneys, which as time progresses would probably cause
convulsions, and produce the woman's death. Dr. Bullard spoke
of a cancer of the womb, and perhaps both doctors gave as a reason
malformation of the pelvis, and perhaps other reasons.
Whether these conditions existed in this unfortunate girl at the
time of the operation is not given by any of the doctors. Again,
gentlemen, suppose you should decide there was an operation performed
upon this woman, submitted to by her voluntarily, and
without justifiable medical reasons, there is still another question.
Was the death which occurred the direct result of the
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operation ? For example, if a woman were to have a criminal
abortion performed upon her which injured her very much, she
lingered for sometime, then other matters set in, and she died
from other causes, it would not void the policy. If void at all
for this reason it must be because death is the direct, and not
the indirect, result. I think the doctors, so far as they testify
upon the subject, practically agreed that death resulted from
septicaemia, or blood poisoning, which was the result of the abortion.
When was this operation performed ? How long before
death ? [Did any other cause, taking in consideration where it
was alleged it was performed, intervene, which produced blood
poisoning, or septicaemia, and cause 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.] [9]
Defendant's sixth point and the answer thereto were as fol
lows:
Under all the evidence in the case there can be no recovery on
the policy. Answer: The court declines to affirm this point. [4]
Urrors assigned among others were (4-9) above instructions,
quoting them.
W. 8. M'Lean and J. B. Woodward, for appellant.—Where
there is no real controversy as to the facts the court may give
a binding instruction to the jury: Cougle v. McKee, 151 Pa.
602; Gardner v. McLallen, 4 W. N. C. 435.
H. W. Palmer, with him John T. Lenahan, for appellee.—
When there is any evidence which alone would justify an inference
of the disputed fact it must go to the jury, however
strong or persuasive may be the countervailing proof: Howard
Express Co. v. Wile, 64 Pa. 201; Reel v. Elder, 62 Pa. 316.
OPINION BY MR.. . JUSTICE GREEN, April 24,1899:
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
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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 case 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
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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, I 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 Mi's. 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. Stoeckel, 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. Stoeckel 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.
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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
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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 Bhe 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.
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Notes
- ↑ This is the text of “Wells v. The New England Mutual Life Insurance Company,” 191 Pa. 207 (1899). Also cited at 43 A. 126 (1899).