Richter & Birdsong, Horace E. Richter, for appellee.R. Bruce Lowry, for appellant.

The complaint of the unmarried, minor plaintiff stated a tort claim against a chiropractor for damages for her injuries, resulting from an illegal abortion operation performed upon her by him with her assent and caused by his alleged negligence prior to, during the course of and subsequently to said operation; therefore, the court erred in its judgment dismissing the action.

Freddie Alanda Gaines brought a tort action against Joseph Wolcott to recover damages for personal injuries caused by the defendant's alleged negligence in the performance of an illegal abortion upon her. The complaint as amended alleged substantially as follows: On October 18, 1967, the plaintiff, an unmarried, pregnant woman under 21 years of age, called the defendant, a practicing chiropractor in LaGrange, Georgia, to schedule the operation, which was performed in his office the following afternoon. Prior to the operation, he told her never to call him at his home again, because his wife did not know of his abortion practice. Although he demanded a fee of $250 to do the operation, he accepted $150 when she told him that was all she had with her. The defendant inserted some sort of device, which plaintiff believes to have been a catheter, into her uterine canal and told her to leave it inside her until at least the following Saturday morning or longer. During the approximately one hour and fifteen minute treatment, no other parties were present and plaintiff was not given any anesthesia or shot. Defendant assured plaintiff that the operation which he had performed would cause her to abort spontaneously. The specifications of negligence are: (1) In not using sterile operation techniques; (2) In failing to advise the plaintiff of the possible consequences of the operation; (3) In holding himself out as being capable of performing an operation which requires the skill of a medical doctor rather than that of a chiropractor; and (4) In not taking proper steps to care for plaintiff when she informed him approximately one week later that serious complications had developed as a result of the operation. As a result of the negligent treatment, the plaintiff has suffered and will continue to suffer intense physical and mental pain from her permanent injuries, which caused numerous visits to medical doctors, several hospitalizations and operations, inability to work at her job and future medical expenses.

The trial court granted the defendant's motion to dismiss, from which judgment the plaintiff appeals.

This appeal raises the question (apparently a novel one in this State) of whether an unmarried, minor plaintiff can recover damages in her tort action against a chiropractor for her injuries, resulting from an illegal abortion performed upon her by him with her assent and caused by his alleged negligence prior to, during the course of and subsequently to said operation.

The law in this State is that, where one is engaged with another in the simultaneous and wilful violation of the same penal statute, he cannot recover damages for injuries inflicted upon him through the negligence of his joint wrongdoer unless the violation of the statute was not a contributing cause of the in-juries; this is based upon the principle that the parties are in pari delicto, that what each does is the act of the other and that to permit a recovery under such circumstances would be in violation of public policy. Allen v. Gornto, 100 Ga. App. 744, 750 (112 SE2d 368), and cases cited; Code 37-112, 105-603. The penal statute violated in the present case was either Code 26-1101 or 26-1102 (Ga. L. 1876, p. 113), depending upon whether the unborn child was quick or not, respectively. Biegun v. State, 206 Ga. 618, 626 (58 SE2d 149). Under our abortion statutes, unlike those in some jurisdictions, a female is not guilty of a crime by her participation in an abortion operation, although she may violate other, somewhat related statutes, i.e., Code 26-1104, 26-1105, and 26-1106. "The female upon whom a criminal abortion has been performed is not an accomplice with the perpetrator of the offense, as she can not be indicted for that offense." Gullatt v. State, 80 Ga. App. 723 (57 SE2d 338). Ordinarily, the question of whether such care and skill were used is for a jury. Norton v. Hamilton, 92 Ga. App. 727, 731 (89 SE2d 809, 57 ALR2d 426), and cit.

Recovery of damages in cases such as the present one has been permitted in a number of jurisdictions, even in those in which the female involved was guilty of a crime by her participation in the abortion operation. See annotation in 21 ALR2d 364, 369, 371 ( 3), and cit.

"A distinct split of authority has developed with respect to assent as a defense to acts which amount to a criminal offense. The numerical weight of authority follows the rule that assent to such an act is not a defense in a civil action for the reason that consent to the performance of an unlawful action is invalid." Harper and James, The Law of Torts, 3.10, p. 236, citing (n. 31) Stout v. Wren, 8 N. C. 420 (9 AD 653) (1821); Adams v. Waggoner, 33 Ind. 531 (5 AR 230) (1870); Lund v. Tyler, 115 Iowa 236 (88 NW 333) (1901); Morris v. Miller, 83 Neb. 218 (119 NW 458, 20 LRA (NS) 907, 17 AC 1047) (1909); Royer v. Belcher, 100 W. Va. 694 (100 Ga. App. 744, 757 (112 SE2d 368); Waggoner v. Western Carolina Pub. Co., 190 N. C. 829 (111 Ga. App. 484, 488 (142 SE2d 269). The latter case, as well as others, holds "that the perpetrator of a gross and vicious fraud should not be permitted to set up as a defense that the plaintiff should not have relied upon his good faith and honesty and that whether, under these circumstances, plaintiff has been guilty of such negligence in not informing himself of the facts as to defeat his right of recovery is a jury question. If he has not, then the plaintiff, ex aequo et bono, is entitled to recover." Smith v. Holman, 117 Ga. App. 248, 249 (160 SE2d 533), and cit.

Although it is not the business of the courts to question the wisdom of the legislature in enacting legislation, nevertheless they must ascertain the public policy sought to be expressed in legislation and, insofar as is possible, give effect to it. While it might be argued that, from the viewpoint of the patient, to allow recovery in the present action may tend to encourage the violation of the anti-abortion statutes, it should be observed that abortionists will thereby be deterred from practicing their illicit profession by not only the possibility of criminal prosecution, but also that of civil liability, judgments which under no circumstances should be covered by abortionists' insurance. Furthermore, the probability of their crimes being discovered and prosecuted should be greatly increased by the perpetration of the crime being brought to the attention of the authorities and the public at large by means of civil actions. Unless and until our legislature makes the participation of a female in an abortion operation a crime (and possibly not even then), we cannot hold that she is barred as a matter of law or public policy from a recovery in a civil action for injuries caused by the abortionist's negligence.

The fourth specification of negligence also states a claim for which recovery might be had. "It has been held that the abandonment of a woman who has undergone an illegal abortion with the knowledge than she is seriously ill as a result of such operation, gives rise to a cause of action notwithstanding the consent of the woman to the operation." 21 ALR2d 364, 373 ( 4), and cit.

The court ended in its judgment dismissing the action.

Judgment reversed. Eberhardt and Whitman, JJ., concur.

1968