MEMORANDUM OPINION

GESELL, District Judge.

These two related cases, which have been consolidated with the consent of all parties, challenge the statutory authorization and constitutionality of regulations of the Department of Health, Education and Welfare (HEW) governing human sterilizations under programs and projects funded by the Department’s Public Health Service and its Social and Rehabilitation Service. 39 Fed.Reg. 4730-34 (1974). Plaintiffs are the National Welfare Rights Organization (NWRO), suing on behalf of its 125,000 members, and five individual women, proceeding by class action on behalf of all poor persons subject to involuntary, sterilization under the challenged regulations. Defendants are the Secretary of HEW, under whose authority the regulations were issued, 42 U.S.C. § 216, and two high-level HEW officials charged with the administration of federal family planning funds.

The issues have been fully briefed and-argued, and are now before the Court on separate motions for summary judgment by the respective plaintiffs and on the Secretary’s motion for dismissal or summary judgment. Declaratory and injunctive relief is sought in both cases. The effective date of the regulations has been voluntarily deferred by the Secretary at the Court’s request until March 18, 1974, to facilitate resolution of these issues.

Congress has authorized the funding of a full range of family planning services under two basic procedures. The Public Health Service administers federal grants to state health agencies and to public and private projects for the provision of family planning services to the poor, 42 U.S.C. §§ 300 et seq., 708(a), and the Social and Rehabilitation Service provides funds for such services under the Medicaid and Aid to Families of Dependent Children programs, 42 U.S.C. §§ 601 et seq., 1396 et seq.

Although there is no specific reference to sterilization in any of the family planning statutes nor in the legislative history surrounding their passage, 1 the Secretary has considered sterilization to fall within the general statutory scheme and Congress has been made aware of *1199 this position. But until recently, there were no particular rules or regulations governing the circumstances under which sterilizations could be funded under these statutes.

Sterilization of females or males is irreversible. The total number of these sterilizations is clearly of national significance. New realize that over 16 percent of the married couples in this country between the ages of 20 and 39 have had a sterilization operation. 2 Over the last few years, an estimated 100,000 to 150,000 low-income persons have been sterilized annually under federally funded programs. Virtually all of these people have been adults: only about 2,000 to 3,000 per year have been under 21 years of age and fewer than 300 have been under 18. There are no statistics in the record indicating what percentage of these patients were mentally incompetent.

Although Congress has been insistent that all family planning programs function on a purely voluntary basis, 3 there is uncontroverted evidence in the record that minors and other incompetents have been sterilized with federal funds and that an indefinite number of poor people have been improperly coerced into accepting a sterilization operation under the threat that various federally supported welfare benefits would be withdrawn unless they submitted to irreversible sterilization. 4 Patients receiving Medicaid assistance at childbirth are evidently the most frequent targets of this pressure, as the experiences of plaintiffs Waters and Walker illustrate. Mrs. Waters was actually refused medical assistance by her attending physician unless she submitted to a tubal ligation after the birth. Other examples were documented.

When such deplorable incidents began to receive nationwide public attention due to the experience of the Relf sisters in Alabama, the Secretary took steps to restrict the circumstances under which recipients of federal family planning funds could conduct sterilization operations. On August 3, 1973, the Department published in the Federal Register a notice of Guidelines for Sterilization Procedures under HEW Supported Programs. 38 Fed.Reg. 20930 (1973). The notice directed that the policies set forth in the guidelines be implemented through regulations to be issued by the departmental agencies administering programs which provide federal financial assistance for family planning services. Notices of proposed rule making were duly published in the Federal Register on September 21, 1973. 38 Fed. Reg. 26459 (1973). Interested persons were given an opportunity to participate in the rule making by submitting comments on the proposed regulations. Approximately 300 comments, including those of plaintiff NWRO, were received and reviewed by the Department. The final regulations here under attack were issued on February 6, 1974.

These regulations provide that projects and programs receiving PHS or SRS funds, whether for family planning or purely medical services, 5 shall neither perform nor arrange for the performance of a nontherapeutic sterilization unless certain procedures are carried out. These vary depending upon whether the patient is, under state law, a legally competent adult, a legally competent person under the age of 18, a legally incompetent minor, or a mental incompetent. Briefly, they are as follows:

(1) Legally competent adults must give their “informed consent” to sterili *1200 zation. Such consent must be evidenced by a written and signed document indicating, inter alia, that the patient is aware of the benefits and costs of sterilization and of the fact that he may withdraw from the operation without losing federal benefits. 42 CFR § 50.-202(f); 45 CFR § 205.35(a)(2) (ii).

(2) Legally competent persons under the age of 18 must also give such written consent. In these situations, a.special Review Committee of independent persons from the community must also have determined that the proposed sterilization is in the best interest of the patient, taking into consideration (a) the expected mental and physical impact of pregnancy and motherhood on the patient, if female, or the expected mental impact of fatherhood, if male, and (b) the expected immediate and long-term mental and physical impact of sterilization on the patient. 42 CFR § 50.-206(a); 45 CFR § 205.35(a)(4)(i). The Review Committee must also (a) review appropriate medical, social and psychological information concerning the patient, including the age of the patient, alternative family planning methods, and the adequacy of consent, and (b) interview the patient, both parents of the patient (if available), and such other persons as in its judgment will contribute pertinent information. 42 CFR § 50.206(b) (1, 2); 45 CFR § 205.35 (a)(4)(i)(A, B). However, parental consent is not required. 42 CFR § 50.-203(c); 45 CFR § 205.35(a)(5)(ii).

(3) Legally incompetent minors must be afforded the above safeguards, and, in addition, a state court of competent jurisdiction must determine that the proposed sterilization is in the best interest of the patient. 42 CFR § 50.203(c); 45 CFR § 205.35(a)(1)(iv)(A, B).

(4) The sterilization of mental incompetents of all ages must also be sanctioned by a Review Committee and a court. However, personal consent is not required — it is enough that the patient’s “representative” requests sterilization. 42 CFR § 50.203(a); 45 CFR § 205.-35(a)(1). Although defendants interpret the term “representative” to mean a person empowered under state law to consent to the sterilization on behalf of the patient, no such definition appears in the regulations themselves.

Plaintiffs do not oppose the voluntary sterilization of poor persons under federally funded programs. However, they contend that these regulations are both illegal and arbitrary because they authorize involuntary sterilizations, without statutory or constitutional justification. They argue forcefully that sterilization of minors or mental incompetents is necessarily involuntary in the nature of things. Further, they claim that sterilization of competent adults under these regulations can be undertaken without insuring that the request for sterilization is in actuality voluntary. The Secretary defends the regulations and insists that only “voluntary” sterilization is permitted under their terms.

Before considering these issues, the Court must first dispose of several preliminary objections raised by defendants, who assert that the Court is without authority to resolve this controversy. They challenge the standing of all of the plaintiffs, but NWRO clearly has standing to bring this action since it has an organizational interest in the rights of its welfare recipient members, many of whom may be directly subject to involuntary sterilizations as authorized by the challenged regulations. Sierra Club v. Morton, 405 U.S. 727, 734-735, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); National Welfare Rights Organization v. Finch, 139 U.S.App.D.C. 46, 429 F.2d 725, 734-735 (1970). Moreover, although the Court ruled in prior proceedings that four of the five Relf plaintiffs lack standing because they have already been sterilized, Katie Relf is still a member of the class of persons subject to federally funded sterilization, and the Court finds that she can adequately represent that class for the purposes of relief under Rule 23(b)(2) of the Federal Rules of Civil *1201 Procedure. The fact that she has never requested sterilization is patently irrelevant. She challenges the regulations primarily on the ground that they authorize involuntary sterilization. Indeed, an attempt was actually made under federal auspices to sterilize Katie Relf against her will, which she successfully resisted by locking herself in her room.

Defendants also suggest that the challenged regulations do not actually “cause” the asserted injuries, since they are restrictions upon sterilizations subject to state law rather than authorizations for an otherwise illegal operation. They conclude that if plaintiffs believe that the regulations themselves will cause injury, they must wait until such injuries occur before bringing this action. These contentions have no legal or realistic merit. The regulations authorize sterilizations with federal funds and thus interject the Government into an area where its presence cannot be excused simply because sterilizations might also have been performed with private or state funds. Nor are the claims premature. The Supreme Court has repeatedly stated that the right of privacy entails the right of the individual “to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349 (1972). See also Cleveland v. La Fleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974) ; Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). Involuntary sterilizations directly threaten that right, Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), and plaintiffs correctly contend that the challenged regulations authorize such sterilizations. Under these circumstances it is well established that one does not have to forfeit fundamental rights before he or she may complain, so long as the threat is real and immediate, as it is here. Cf. Gooding v. Wilson, 405 U.S. 518, 521, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1973); Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 13 L.Ed.2d 681 (1967).

The Court must therefore proceed to the merits. While plaintiffs invoke both statutory and constitutional principles, relying on the Fourth, Fifth, Sixth, Eighth and Ninth Amendments to the Constitution in support of their position, the issues tendered may be readily resolved simply by resort to the underlying statutes. Accordingly, no occasion exists to consider the related constitutional claims.

For the reasons developed below, the Court finds that the Secretary has no statutory authority under the family planning sections 6 of the Social Security or Public Health Services Acts to fund the sterilization of any person incompetent under state law to consent to such an operation, whether because of minority or of mental deficiency. It also finds that the challenged regulations are arbitrary and unreasonable in that they fail to implement the congressional command that federal family planning funds not be used to coerce indigent patients into submitting to sterilization. In short, federally assisted family planning sterilizations are permissible only with the voluntary, knowing and uncoerced consent of individuals competent to give such consent. This result requires an injunction against substantial portions of the proposed regulations and their revision to insure that all sterilizations funded under the family planning sections are voluntary in the full sense of that term and that sterilization of incompetent minors and adults is prevented.

*1202 The dispute with regard to minors and mental incompetents centers around two aspects of the statutory language. On the one hand, Congress included in every section mentioning family planning a requirement that such services be voluntarily requested. 42 U.S.C. §§ 300a-5, 602(a)(15), 708(a), 1396d(a)(4). On the other hand, these sections purport to offer family planning services to all poor people and two of them specifically include minors. 42 U.S.C. §§ 602(a)(15), 1396d(a)(4). The Secretary argues that this juxtaposition indicates that Congress intended that minors personally and incompetents through their representatives would be able to consent to sterilization under these sections. That conclusion is unwarranted.

Although the term “voluntary” is nowhere defined in the statutes under consideration, it is frequently encountered in the law. Even its dictionary definition assumes an exercise of free will and clearly precludes the existence of coercion or force. Webster’s Second New International Dictionary 2858 (2d ed. 1961). See also United States v. Johnson, 147 U.S.App.D.C. 31, 452 F.2d 1363, 1372 (1971); United States v. Thompson, 356 F.2d 216, 220-221 (2d Cir. 1965), cert. denied, 384 U.S. 964, 86 S.Ct. 1591, 16 L.Ed.2d 675 (1966). And its use in the statutory and decisional law, at least when important human rights are at stake, entails a requirement that the individual have at his disposal the information necessary to make his decision and the mental competence to appreciate the significance of that information. See, e. g., Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Elder v. Crawley Book Machinery Co., 441 F.2d 771, 773 (3d Cir. 1971); Pearson v. United States, 117 U.S.App.D.C. 52, 325 F.2d 625, 626-667 (1963).

No person who is mentally incompetent can meet these standards, nor can the consent of a representative, however sufficient under state law, impute voluntariness to the individual actually undergoing irreversible sterilization. Minors would also appear to lack the knowledge, maturity and judgment to satisfy these standards with regard to such an important issue, whatever may be their competence to rely on devices or medication that temporarily frustrates procreation. This is the reasoning that provides the basis for the nearly universal common law and statutory rule that minors and mental incompetents cannot consent to medical operations, see Restatement of Torts § 59 (1934), or be held to contractual obligations, see 43 C.J.S. Infants § 71 et seq.; 17 C.J.S. Contracts § 133. 7

The statutory references to minors and mental incompetents do not contradict this conclusion, for they appear only in the context of family planning services in general. Minors, for example, are not legally incompetent for all purposes, and many girls of child-bearing age are undoubtedly sufficiently aware of the relevant considerations to use temporary contraceptives that intrude far less on fundamental rights. However, the Secretary has not demonstrated and the Court cannot find that Congress deemed such children capable of voluntarily consenting to an irreversible operation involving the basic human right to procreate. Nor can the Court find, in the face of repeated warnings concerning voluntariness, that Congress authorized the imposition of such a serious deprivation upon mental incompetents at the will of an unspecified “representative.”

*1203 The regulations also fail to provide the procedural safeguards necessary to insure that even competent adults voluntarily request sterilization. Plaintiffs would require an elaborate hearing process prior to the operation to remedy this problem. The Secretary, however, has determined that the consent document procedure set forth in the existing regulations is adequate in most instances to insure a knowledgeable decision, and the Court finds that this determination is not unreasonable. In one respect, however, the consent procedure must be improved. Even a fully informed individual cannot make a “voluntary” decision concerning sterilization if he has been subjected to coercion from doctors or project officers. 8 Despite specific statutory language forbidding the recipients of federal family planning funds to threaten a cutoff of program benefits unless the individual submits to sterilization 9 and despite clear evidence that such coercion is actually being applied, 10 the challenged regulations contain no clear safeguard against this abuse. Although the required consent document must state that the patient can withdraw his consent to sterilization without losing other program benefits, there is nothing to prohibit the use of such coercion to extract the initial consent.

In order to prevent express or implied threats, which would obviate the Secretary’s entire framework of procedural safeguards, and to insure compliance with the statutory language, the Court concludes that the regulations must also be amended to require that individuals seeking sterilization be orally informed at the very outset that no federal benefits can be withdrawn because of a failure to accept sterilization. This guarantee must also appear prominently at the top of the consent document already required by the regulations. To permit sterilization without this essential safeguard is an unreasonable and arbitrary interpretation of the congressional mandate.

Since these conclusions are based on statutory rather than constitutional grounds, the Court need not reach the question of whether involuntary sterilization could be funded by Congress. It is sufficient to note that there is no indication whatever that Congress intended to do so under the existing legislation, and such an intent will not be lightly assumed in light of the fundamental interests at stake. The present statutes were passed to facilitate only voluntary family planning and thus to assist the individual in the exercise of his voluntary right to govern his own procreation. Involuntary sterilization is not only distinguishable from these services, but diametrically so. It invades rather than compliments the right to procreate.

This controversy has arisen during a period of rapid change in the field of birth control. In recent years, through the efforts of dedicated proponents of family planning, birth control information and services have become widely available. Aided by the growing acceptance of family planning, medical science has steadily improved and diversified the techniques of birth prevention and control. Advancements in artificial insemination and in the understanding of genetic attributes are also affecting the decision to bear children. There are even suggestions in the scientific literature that the sex of children may soon be subject to parental control. And over this entire area'lies the specter of overpopulation, with its possible impact upon the food supply, interpersonal relations, *1204 privacy, and the enjoyment of our “inalienable rights.”

Surely the Federal Government must move cautiously in this area, under well-defined policies determined by Congress after full consideration of constitutional and far-reaching social implications. The dividing line between family planning and eugenics is murky. And yet the Secretary, through the regulations at issue, seeks to sanction one of the most drastic methods of population control — the involuntary irreversible sterilization of men and women — without any legislative guidance. Whatevei might be the merits of limiting irresponsible reproduction, which each year places increasing numbers of unwanted or mentally defective children into tax-supported institutions, it is for Congress and not individual social workers and physicians to determine the manner in which federal funds should be used to support such a program. We should not drift into a policy which has unfathomed implications and which permanently deprives unwilling or immature citizens of their ability to procreate without adequate legal safeguards and a legislative determination of the appropriate standards in light of the general welfare and of individual rights.

The foregoing shall constitute the Court’s findings of fact and conclusions of law. The various motions for summary judgment are granted in part as indicated in the attached Order, and the Secretary’s motion to dismiss is denied. Each party shall bear its own costs and attorneys’ fees.

ORDER

In accordance with the Court’s findings of fact and conclusions of law set forth in a Memorandum Opinion filed this 15th day of March, 1974, it is hereby

Ordered that the above-captioned actions are consolidated for all purposes; and it is further

Ordered that plaintiff Katie Relf may prosecute her claims as a class representative under Rule 23(b)(2) of the Federal Rules of Civil Procedure on behalf of all poor persons subject to involuntary sterilization under programs or projects which receive funds administered by the Public Health Service or the Social and Rehabilitation Service of the United States Department of Health, Education and Welfare; and it is further

Declared that the family planning sections of the Public Health Service Act (42 U.S.C. §§ 300 et seq., 708(a)(3)) and of the Social Security Act (42 U.S.C. §§ 602(a)(15), 1396d(a)(4)(C)) do not authorize the provision of federal funds for the sterilization of any person who (1) has been judicially declared mentally incompetent, or (2) is in fact legally incompetent under the applicable state laws to give informed and binding consent to the performance of such an operation because of age or mental capacity; and it is further

Ordered that defendants, their successors, subordinates, agents and employees are permanently enjoined from providing funds under the aforesaid family planning sections for the sterilization of any person who (1) has been judicially declared mentally incompetent, or (2) is in fact legally incompetent under the applicable state laws to give informed and binding consent to the performance of such an operation because of age or mental capacity; and it is further

Declared that the Sterilization Restrictions regulations issued by the United States Department of Health, Education and Welfare on February 6, 1974 (39 Fed.Reg. 4730-34 (1974)) are arbitrary and unreasonable in that they authorize the provision of federal funds under the aforesaid family planning sections for the sterilization of a legally competent person without requiring that such person be advised at the outset and prior to the solicitation or receipt of his or her consent to such an operation that no benefits provided by programs or projects receiving federal funds may be withdrawn or withheld by reason of his *1205 or her decision not to be sterilized, and without further requiring that such advice also appear prominently at the top of the consent document mentioned in those regulations, and it is further

Ordered that defendants shall promptly amend the aforesaid Sterilization Restrictions regulations to bring them into conformity with this Order; and it is further

Ordered that plaintiffs’ motions for summary judgment are granted in the above respects and denied in all other respects; and it is further

Ordered that defendants’ motion to dismiss is denied, and their motion in the alternative for summary judgment is granted in the above respects and denied in all other respects; and it is further

Ordered that each party shall bear its own costs and attorneys’ fees.

Yellott, J.,

delivered the opinion of the Court.

An action for damages was brought against the appellees who are physicians residing in Cecil County. It •is-alleged in the declaration that they caused the death of one Matilda Janney, by unskillfully or wrongfully performing a surgical operation. The action was brought in the name of the State for the benefit of the appellants, one of whom was the husband, and the others were the children of the deceased. Under the provisions of Art. 67, of the Md. Code, if the death is caused by the wrongful act, neglect, or default of the defendant a suit may be instituted for the benefit of the husband, wife, parent or child of the'deceased.

The evidence shows that the deceased had been afflicted by the formation of a lump in her right breast. It was supposed at first to be a tumor, but afterwards ascertained to be a cancer. The defendant, *169Housekeeper, a regular physician, was consulted and advised a surgical operation. A day for the performance of the operation was appointed, and the two defendants and another. physician were present and performed the operation hy cutting off the entire right hreast. The operation was performed about the first of June, and the death occurred on the 5th of December following, and is not attributed with any degree of certainty to the effects of the surgical operation. Some portions of the evidence tend to prove that the wound caused by the surgical instruments was entirely healed, and that death was produced by tubercular meningitis. In the conflict of testimony this was a fact to be determined by the jury. The husband of the deceased, who is one of the equitable plaintiffs, relies upon the fact that although he expressed a willingness that there should be an operation for a tumor, he did not consent to,the excision of a cancer. He says that he told Dr. Housekeeper that if the formation in the breast was a cancer, he objected to its removal. His own testimony shows that he assisted the physicians in preparing to perform the operation, and though not in the room where it was performed, was near at hand. He says he supposed that the medical men were operating for a tumor, and that he would not have consented to an operation for a cancer. There is evidence from which a jury might infer that the patient knew that the formation in her breast was a cancer. When the doctors came to the house she had already prepared herself to undergo the operation. If she consented to the operation the doctors were justified in performing it, if after consultation they deemed it necessary for the preservation and prolongation of the patient’s life. Surely the law does- not authorize the husband to say to his wife, you shall die of the cancer; you cannot be cured, and a surgical *170operation affording only temporary relief, will result in useless expense. The husband had no power to withhold from his wife the medical assistance which her case might require. Harris vs. Lee, 1 P. Wms., 482; Mayhew vs. Thayer, 8 Gray, 172.

As was said by the Supreme Court of Michigan in the recent case of Garsten vs. Hansel-man, 61 Mich., 426: *'cIt would be a cruel rule for her, if she cannot in his absence, at least, or in his presence, if he does not himself provide for her, make, a binding agreement for any necessaries, whether articles to be purchased, or professional help, without becoming a public charge. It is not to be expected that physicians and surgeons will always feel bound to render gratuitous treatment to injured persons, and when the occasion is pressing, it would-be unreasonable to delay until an absent husband is communicated with to learn whether he consents or refuses to assume her contracts. Time will not allow minute inquiries, and humanity will not prompt them. It seems to us that no sensible line can be drawn between contracts for food and clothing, and'contracts for medical aid.”

The consent of the wife, not that of the husband, was necessary. .The professional men whom she had called in and consulted, being possessed of skill and scientific knowledge, were the proper persons to determine what ought to be done. They could not, of course, compel her to submit to an operation, but if she voluntarily submitted to its performance, her consent will be presumed, unless she was the victim of a false and fradulent misrepresentation, which is a material fact to be established by proof. The Court below was therefore right in rejecting the first and third prayers of the plaintiffs, which place the burden of proof in regard to consent on the defendants. If the plaintiff alleges that there was no consent, he must establish *171his affirmation by proof. The party who allows a surgical operation to be performed is presumed to have employed the surgeon for that particular purpose. Gladwell vs. Steggall, 5 Bingh. N. C., 733.

It was the duty of the professional men to exercise ordinary care and skill, and this being a duty imposed by law, it will be presumed that the operation was carefully and skillfully performed in the absence of proof to the contrary. As all persons are presumed to have duly performed any duty imposed on them, negligence cannot be presumed, but must be affirmatively proved. Best on Presump., 68; Jacksonville Street R. Co. vs. Chappell, 21 Fla., 175.

This principle is especially applicable in suits against physicians and surgeons for injuries sustained by reason of alleged unskillful and careless treatment. The burden of proof is on the plaintiff to show a want of proper knowledge and skill. Leighton vs. Sargent, 31 N. H., 119, (11 Foster;) Baird vs. Morford, 29 Iowa, 531.

The Court below committed no error in determining that it was incumbent on the plaintiff to prove affirmatively that the operation was performed without the consent of the patient, and also that her death was caused by unskillful and careless treatment of the physicians. Hor did the Court commit any error in granting the defendants’ second prayer, which enunciates the proposition that if death was caused by tubercular meningitis or other disease not produced by the operation, the defendants are not liable. The defendants’ fourth prayer is also correct, and was properly granted. In it the jury are told that even if the disease resulting in death was caused by the opeiv ation, the defendants are not liable, if they performed said operation wúth the patient’s consent in a careful and skillful manner, and under the belief that said operation was proper to be performed. In the defend*172ants’third prayer tlie jury are told that the degree of care and skill required' is that reasonable degree of care and skill which physicians and surgeons ordinarily exercise in the treatment of their patients, and that the burden of proof is on the- plaintiffs to establish the want of such; skill and care in the performance of the operation and attendance on the deceased while under treatment. There was no error in granting this instruction. It is proper to add, that there was no evidence in the cause to sustain the plaintiff’s case as stated in the first count of his declaration.

(Decided 10th January, 1889.)

Finding no error in any of the rulings of the Court below, its judgment must be affirmed.

Judgment affirmed.

BROWN, J.2

Defendant is a physician and surgeon of standing and character, making disorders of the ear a specialty, and having an extensive practice in the city of St. Paul. He was consulted by plaintiff, who complained to him of trouble with her right ear, and, at her request, made an examination of that organ for the purpose of ascertaining its condition. He also at the same time examined her left ear, but, owing to foreign substances therein, was unable to make a full and complete diagnosis at that time. The examination of her right ear disclosed a large perforation in the lower portion of the drum membrane, and a large polyp *265in the middle ear, which indicated that some of the small bones of the middle ear (ossicles) were probably diseased. He informed plaintiff of the result of his examination, and advised an operation for the purpose of removing the polyp and diseased ossicles. After consultation with her family physician, and one or two further consultations with defendant, plaintiff decided to submit to the proposed operation. She was not informed that her left ear was in any way diseased, and understood that the necessity for an operation applied to her right ear only. She repaired to the hospital, and was placed under the influence of anaesthetics; and, after being made unconscious, defendant made a thorough examination of her left ear, and found it in a more serious condition than her right one. A small perforation was discovered high up in the drum membrane, hooded, and with granulated edges, and the bone of the inner wall of the middle ear was diseased and dead. He called this discovery to the attention of Dr. Davis — plaintiff’s family physician, who attended the operation at her request — who also examined the ear and confirmed defendant in his diagnosis. Defendant also further examined the right ear, and found its condition less serious than expected, and finally concluded that the left, instead of the right, should be operated upon; devoting to the right ear other treatment. He then performed the operation of ossiculectomy on plaintiff’s left ear; removing a portion of the drum membrane, and scraping away the diseased portion of the inner wall of the ear. The operation was in every way successful and skilfully performed. It is claimed by plaintiff that the operation greatly impaired her hearing, seriously injured her person, and, not having been consented to by her, was wrongful and unlawful, constituting an assault and battery; and she brought this action to recover damages therefor.

The trial in the court below resulted in a verdict for plaintiff for $14,322.50. Defendant thereafter moved the court for judgment notwithstanding the verdict, on the ground that, on the evidence presented, plaintiff was not entitled to recover, or, if that, relief was denied, for a new trial on the ground, among others, that the verdict was excessive; appearing to have been given under the influence of passion and prejudice. The trial court denied the motion for judgment, but granted a new trial on the ground, as stated in the order, that the damages were excessive. Defendant appealed from the order denying the *266motion for judgment, and plaintiff appealed from the order granting a new trial.

1. It is contended on plaintiff’s appeal that the trial court erred in granting a new trial of the action; that the order should be reversed, and the verdict reinstated. The new trial was granted, as already stated, on the ground that the verdict was excessive, appearing to have been given under the influence of passion and prejudice; and the point made is that the evidence, as contained in the record, does not sustain this conclusion, within the limits of the rule applicable to motions for a new trial based upon that ground. Considerable confusion has existed with reference to the proper rule guiding this court in reviewing orders of this kind ever since the decision in Nelson v. Village of West Duluth, 55 Minn. 497, 57 N. W. 149, wherein it was said that the rule of Hicks v. Stone, 13 Minn. 398 (434) did not apply. Several decisions involving the same question have since been filed, and the bar is apparently in some doubt as to the true rule upon the subject.

We are not disposed to review the former decisions of the court, but, for future guidance, take this occasion to say (that there may be no further controversy in the matter) that in actions to recover unliquidated damages, such as actions for personal injuries, libel, and slander, and similar actions, where the plaintiff’s damages cannot be computed by mathematical calculation, and are not suceptible to proof by opinion evidence, and are within the discretion of the jury, the motion for new trial on the ground -of excessive or inadequate damages should be made under the fourth subdivision of section 5398, G. S. 1894; and in such cases the court will not interfere with the verdict unless the damages awarded appear clearly to be excessive or inadequate, as the case may be, and to have been given under the influence of passion or prejudice. On the other hand, in all actions, whether sounding in tort or contract, where the amount of damages dep'ends upon opinion evidence, as the value of property converted or destroyed, the nature and extent of injuries to person or property, the mottion for new trial should be made under the fifth subdivision of the statute referred to; and in cases of doubt, or where both elements of damages are involved, under both subdivisions. State v. Shevlin-Carpenter Co., 66 Minn. 217, 68 N. W. 973.

But in any case, whether a new trial upon the ground of excessive *267or inadequate damages should be granted or refused, or whether the verdict should be reduced, rests in the sound judicial discretion of the trial court (Craig v. Cook, 28 Minn. 232, 9 N. W. 712; Pratt v. Pioneer Press Co., 32 Minn. 217, 18 N. W. 836, 20 N. W. 87), in reviewing which this court will be guided by the general rule applicable to other discretionary orders. We applied this rule at the present term in Epstein v. Chicago Great Western Ry. Co., infra, page 516. Where the damages are susceptible of ascertainment by calculation, and the jury return either an inadequate or excessive amount, it is the duty of the court to grant unconditionally a new trial for the inadequacy of the verdict, or, if excessive, a new trial unless plaintiff will consent to a reduction of the amount given by the jury.

Applying the rule stated to the case at bar, we are clear the trial court did not abuse its discretion in granting defendant’s motion for a new trial, and its order on plaintiff’s appeal is affirmed. We cannot adopt the suggestion of counsel for plaintiff that this court now reduce the verdict to a proper amount, for there is no verdict upon which such an order could act. It was set aside by the trial court, i 2. We come then to a consideration of the questions presented by defendant’s appeal from the order denying his motion for judgment notwithstanding the verdict. It is contended that final judgment should be ordered in his favor for the following reasons: (a) That it appears from the evidence received on the trial that plaintiff consented to the operation on her left ear. (b) If the court shall find that no such consent was given, that, under the circumstances disclosed by the record, no consent was necessary, (c) That, under the facts disclosed, an action for assault and battery will not lie; it appearing conclusively, as counsel urge, that there is a total lack of evidence showing or tending to show malice or an evil intent on the part of defendant, or that the operation was negligently performed. /

We shall- consider first the question whether, under the circumstances shown in the record, the consent of plaintiff to the operation was necessary. If, under the particular facts of this case, such consent was unnecessary, no recovery can be had, for the evidence fairly shows that the operation complained of was skilfully performed and of a generally beneficial nature. But if the consent of plaintiff was necessary, then the further questions presented become important. This *268particular question is new in this state. At least, no case has been called to our attention wherein it has-been discussed or decided, and very few cases are cited from other courts. We have given it very deliberate consideration, and are unable to concur with counsel for defendant in their contention that the consent of plaintiff was unnecessary.

The evidence tends to show that, upon the first examination of plaintiff, defendant pronounced the left ear in good condition, and that, at the time plaintiff repaired to the hospital to submit to the operation on her right ear, she was under the impression that no difficulty existed as to the left. In fact, she testified that she had not previously experienced any trouble with that organ. It cannot be doubted that ordinarily the patient must be consulted, and his consent given, before a physician may operate upon him.

It was said in the case of Pratt v. Davis, 37 Chicago Leg. News, 213, referred to and commented on in 60 Cent. Daw J. 452: “Under a free government, at least, the free citizen’s first and greatest right, which underlies all others — the right to the inviolability of his person; in other words the right' to himself — is the subject of universal acquiescence, and this right necessarily forbids a physician or surgeon, however skilful or eminent, who has been asked to examine; diagnose, advise, and prescribe (which are at least necessary first steps in treatment and care), to violate, without permission, tíre bodily integrity of his patient by a major or capital operation, placing him under an anaesthetic for that purpose, and operating upon him without his consent or knowledge.”

1 Kinkead Torts, § 375, states the general rule on this "subject as follows: “The patient must be the final arbiter as to whether he shall take his chances with the operation, or take his chances of living without it. Such is the natural right of the individual, which the law recognizes as a legal right. Consent, therefore, of an individual, must be either expressly or impliedly given before a surgeon may have the right to operate.” There is logic in the principle thus stated, for, in all other trades, professions, or occupations, contracts are entered into by the mutual agreement of the interested parties, and are required to be performed in accordance with their letter and spirit. No reason occurs to us why the same rule should not apply between *269physician and patient. If the physician advises his patient to submit to a particular operation, and the patient weighs the dangers and risks incident to its performance, and finally consents, he thereby, in effect, enters into a contract authorizing his physician to operate to the extent of the consent given, but no further.

It is not, however, contended by defendant that under ordinary circumstances consent is unnecessary, but that, under the particular circumstances of this case, consent was implied; that it was an emergency case, such as to authorize the operation without express consent or permission. The medical profession has made signal progress in solving the problems of health and disease, and they may justly point with pride to the advancéments made in supplementing nature and correcting deformities, and relieving pain and suffering. The physician impliedly contracts that he possesses, and will exercise in the treatment of patients, skill and learning, and that he will exercise reasonable, care and exert his best judgment to bring about favorable results. The methods of treatment are committed almost exclusively to his judgment, but we are aware of no rule or principle of law which would ■extend to him free license respecting surgical operations. Reasonable latitude must, however, be allowed the physician in a particular case; and we would not lay down any rule which would unreasonably interfere with the exercise of his discretion, or prevent Him from taking such measures as his judgment dictated for the welfare of the patient in a case of emergency. If a person should be injured to the extent of rendering him unconscious, and his injuries were of such a nature as to require prompt surgical attention, a physician called to attend him would be justified in applying such medical or surgical treatment as might reasonably be necessary for the preservation of his life or limb, and consent on the part of the injured person would be implied. And again, if, in the course of an operation to which the patient consented, the physician should discover conditions not anticipated before the operation was commenced, and which, if not removed, would endanger the life or health of the patient, he would, though no express consent was obtained or given, be justified in extending the operation to remove and overcome them.

But such is not the case at bar. The diseased condition of plaintiff’s left ear was not discovered in the course of an operation on the right *270which was authorized, but upon an independent examination of that organ, made after the authorized operation was found unnecessary. Nor is the evidence such as to justify the court in holding, as a matter of law, that it was such an affection as would result immediately in the serious injury of plaintiff, or such an emergency as to justify proceeding without her consent. She had experienced no particular difficulty with that ear, and the questions as to when its diseased condition would become alarming or fatal, and whether there was an immediate necessity for an operation, were, under the evidence, questions of fact for the jury.

3. The contention of defendant that the operation was consented to by plaintiff is not sustained by the evidence. At least, the evidence was such as to take the question to the jury. This contention is based upon the fact that she was represented on the occasion in question by her family physician; that the condition of her left ear was made known to him, and the propriety of an operation thereon suggested, to which he made no objection. It is urged that by his conduct he assented to it, and that plaintiff was bound thereby. It is not claimed that he gave his express consent. It is not disputed but that the family physician of plaintiff was present on the occasion of the operation, and at her request. But the purpose of his presence was not that he might participate in the operation, nor does it appear that he was-authorized to consent to any change in the one originally proposed to-be made. Plaintiff was naturally nervous and fearful of the consequences of being placed under the influence of anaesthetics, and the presence of her family physician was requested under the impression that it would allay and calm her fears. The evidence made the question one of fact for the jury to determine.

4. The last contention of defendant is that the act complained of did not amount to an assault and battery. This is based upon the theory that, as plaintiff’s left ear was in fact diseased, in a condition dangerous and threatening to her health, the operation was necessary, and, having been skilfully performed at a time when plaintiff had requested a like operation on the other ear, the charge of assault and battery cannot be sustained; that, in view of these conditions, and the claim that there was no negligence on the part of defendant, and an entire absence of any evidence tending to show an evil intent, the court should say, as a *271matter of law, that no assault and battery was committed, even though she did not consent to the operation. In other words, that the absence of a showing that defendant was actuated by a wrongful intent, or guilty of negligence, relieves the act of defendant from the charge of an unlawful assault and battery.

We are unable to reach that conclusion, though the contention is not without merit. It would seem to follow from what has been said on the other features of the case that the act of defendant amounted at 'east to a technical assault and battery. If the operation was performed without plaintiff’s consent, and the circumstances were not ?uch as to justify its performance without, it was wrongful; and, if it was wrongful, it was unlawful. As remarked in 1 Jaggard, Torts, 437, every person has a right to complete immunity of his person from physical interference of others, except in so far as contact may be necessary' under the general doctrine of privilege; and any unlawful or unauthorized touching of the person of another, except it be in the spirit of pleasantry, constitutes an assault and battery. In the case at bar, as we have already seen, the question whether defendant’s act in performing the operation upon plaintiff was authorized was a question for the jury to determine. If it was unauthorized, then it was, within what we have said, unlawful. It was a violent assault, not a mere pleasantry; and, even though no negligence is shown, it was wrongful and unlawful. The case is unlike a criminal prosecution for assault and battery, for there an unlawful intent must be shown. But that rule does not apply to a civil action, to maintain which it is sufficient to show that the assault complained of was wrongful and unlawful or the result of negligence. 1 Addison, Torts, 689; Lander v. Seaver, 32 Vt. 114; Vosburg v. Putney, 80 Wis. 523, 50 N. W. 403.

The amount of plaintiff’s recovery, if she is entitled to recover at all, must depend upon the character and extent of the injury inflicted upon her, in determining which the nature of the malady intended to be healed and the beneficial nature of the operation should be taken into consideration, as well as the good faith of the defendant.

Orders affirmed.

Mr. Chief Justice Scott

delivered the opinion of the court:

This is an appeal from a judgment of the Appellate Court for the First District affirming a judgment of the circuit court of Cook county in favor of appellee and against appellant, for the sum of $3000, in an action for trespass to the person.

Appellant is a physician in the city of Chicago, and at the time of the wrong charged was engaged in conducting a sanitarium on Diversey boulevard. Appellee, a married woman about forty years of age and a resident of the same city, came to this sanitarium for treatment for epilepsy in May, 1896. She had been subject to epileptic seizures for a period of fifteen years, but up to this time she had been able to perform her household duties and had borne four children, three since she first exhibited symptoms of epilepsy. The seizures had gradually been increasing in frequency. Following each of them she would be very weak in body and dazed and uncertain in mind for several hours. The evidence of those who knew her in her daily life is generally to the effect that her mind, except during the periods immediately following these attacks, was normal. Appellant made an examination of the pelvic organs and found that the uterus was contracted and lacerated and that the lower portion of the rectum was diseased. On May 13, 1896, he operated for these difficulties. Thereafter she remained in the sanitarium without improvement several weeks and then returned home. On July 29, 1896, her brother-in-law, at request of her husband, took her again to the sanitarium, and on the next day appellant performed a second surgical operation upon her, removing her ovaries and uterus. She continued at the sanitarium until the eighth day of August, 1896, and then was removed to her home. Neither operation was successful, so far as improving her health was concerned. She grew gradually worse mentally, and on August 25, 1898, ivas adjudged insane and sent to the State asylum at Kankakee, and was not a witness in the trial of this case.

The cause of action is based on the removal of the uterus at the second operation. It is not claimed that the operation was unslcillfully performed, but that it was performed without the authority or consent of appellee and constituted a trespass to her person.

The declaration, so far a.s now material, averred that appellee had placed herself under the care of appellant, and that he, without her consent or the consent of any one authorized to act for her, anaesthetized her and removed the uterus. Appellant interposed the general issue and a special plea of leave and license for doing the acts complained of. To the special plea a replication was filed denying the leave and license.

There is no pretense that appellee herself consented to the removal of the uterus. In fact, appellant himself testifies that he told Mrs. Davis just enough about her condition and what he proposed to do, to get her consent to the first operation, and says, quoting his own language: “I worked her deliberately and systematically, taking chances which she did not realize the full aspect of,—deliberately and calmly deceiving the woman; that is, I did not tell her the whole truth.” And referring to the first operation he says: “She knew that the womb was to be operated upon and she was willing that should be done. Consent for further work was not obtained.” The record does not disclose the circumstances under which the anaesthetic was administered prior to the second operation.

Appellant, however, contended that the appellee was so mentally unsound as to be incapable of consenting or of giving intelligent consideration to her condition and that her husband authorized the second operation. Whether appellee was then mentally incapable of consenting was a question as to which the evidence was conflicting.

The trial court held a proposition of law stating that the burden of proof was upon the appellant to show leave and license, and it is said that this was improper in view of the averments of the declaration. If the declaration made necessary, proof of the fact that the operation was performed without the consent of appellee or some one who under the law could act for her, the plea setting up leave and license was plainly useless. Ordinarily, where the patient is in full possession of all his mental faculties and in such physical health as to be able to consult about his condition without the consultation itself being fraught with dangerous consequences to the patient’s health, and when no emergency exists making it impracticable to confer with him, it is manifest that his consent should be a prerequisite to a surgical operation. Where the narr. shows the act to have been a trespass to the person or avers it to have been without the consent of the patient, it would seem to be unnecessary to go farther and negative the fact that some other person lawfully authorized to act for the patient consented. The question of the consent of such other person, if in the case, might well be left to be presented by a plea in bar.

■ We have carefully reviewed the evidence as abstracted, and are satisfied that it does not tend to show that the husband consented to the second operation. He testified that he did not, and that when he first took his wife to the sanitarium appellant told him the operation would be a trilling one, and appellant says that while he may have said this, “Davis said he was willing that I should do anything I thought necessary, only he made the request that I do as little as possible,” and that appellant then told Davis, in substance, that two operations might be necessary. Following that conversation the first operation was performed and later the woman went home. While she was at home, appellant says, “Mr. Davis, plaintiff’s husband, told me she was no better. I told him to bring her back for the finishing work. I did not tell him what the finishing work would be. I had but one comprehensive talk with him; that was the time he was there with the plaintiff.” These two conversations are relied upon by appellant as authority given by the husband for the second operation.

Without deciding what legal effect should be given to the husband’s request or consent that a grave surgical operation be performed upon his insane wife, we think it manifest that the authority given by the husband in the conversation first above quoted from appellant’s testimony was exhausted when the first operation was performed and the patient taken away. While it is true that appellant says he told the husband in that conversation that he could not tell the extent of the surgery that would be necessary and says that Davis gave him carie blanche to do whatever he saw fit, it is yet apparent that neither then contemplated that the wife would be taken home after the first operation and later brought a second time to the sanitarium for the purpose of undergoing a second operation, and we think it equally apparent from appellant’s testimony that the husband did not, at the time he was directed to bring his wife again to appellant for treatment, understand that any such operation as the removal of the ovaries and the uterus was to be performed, and that the mere fact that he, after that conversation, had his brother take appellee to the sanitarium is not to be regarded as tending to show consent to surgery of that character.

As appellee did not consent and the evidence does not tend to show consent given by the husband, it is unnecessary to determine whether the holding of the trial judge to which we have above adverted was correct in the anomalous state of the pleadings. In any event it was harmless.

Appellant then contends that in the absence of express authority to remove the uterus the law will imply the necessary consent from the fact that consent was, as he says, obtained for the removal of the ovaries.

Before bringing this suit appellee instituted a former suit against appellant, which seems to have been disposed'of without any determination of the rights of the parties. In that suit the declaration, which was filed on September n, 1896, averred that the ovaries had been, with the consent of appellee, removed at the first operation upon the promise of appellant that their removal would cure plaintiff, but that their removal, instead of alleviating her condition, aggravated her troubles, and that she thereafter returned to the sanitarium, and that appellant then, without her consent or that of her husband, removed the uterus. In this suit the only claim is for damages occasioned by the removal of the uterus, and in the course of the trial of the case now at bar counsel for appellee stated that he was claiming nothing on account of the removal of the ovaries.

Appellant argues that it appears from the facts thus recited that consent was obtained for the removal of the ovaries, and that correct surgical practice requires that when the ovaries are removed the uterus should also be removed, and that consent for the removal of the ovaries having been obtained, the right to remove the uterus followed.

Appellee, by her brief, says that consent was given for the first operation, and that when she brought the first suit she erroneously believed that the ovaries were removed at that operation. Be this as it may, the declaration in the first suit does not estop appellee to show that she never consented to their removal, and as there is no evidence which tends to show that any permission was obtained for the second operation, when they were in.fact removed, there is therefore nothing to raise the implication in question.

It is also urged that consent is to be implied from the relation of the parties, and the following proposition of. law was submitted as embodying that defense:

“The court holds, as a proposition of law, that when a patient places herself in the care of a surgeon for treatment without instructions to the surgeon or limitations upon his authority, she thereby, in law, consents that he may-perform such operation as in his best judgment, care and skill is necessary, proper and essential to her welfare, and in case the surgeon performs an operation upon the plaintiff, and there is no complaint against the surgeon for want of the exercise of care and skill, there can be no recovery.”

The court held this good as an abstract proposition of law but did not regard it as controlling here, for the reason, as we must assume, that the evidence- did not show a state of facts that made this proposition determinative of the controversy. We are therefore not called upon to decide whether this was a correct statement of the law.

Complaint is made of the action of the court in overruling objections to testimony elicited by appellee from her expert medical witnesses in answer to hypothetical questions. This was a trial without the intervention of a jury, and errors in this regard, if they exist, do not require reversal, as there is in the record abundant competent evidence to justify the finding of the court. Merchants' Despatch Transportation Co. v. Joesting, 89 Ill. 152.

It is next urged that the evidence shows no actual damages ; that the judgment must therefore be made up of nominal damages and exemplary damages, and that this is not a proper case for the infliction of a penalty, wherefore the judgment should be reversed.

The claim that there is no proof of actual damages is based upon this statement found in appellant’s argument: “There is nowhere in the record a syllable showing any pain or suffering as a result of the removal of the uterus.”

Some facts require no direct proof. That pain and suffering follow the removal of the uterus is one of such facts. The law infers pain and suffering from personal injury. 1 Sutherland on Damages, (1st ed.) p. 766.

Further objections are made to the action of the court in passing upon the propositions of law submitted. These objections, in so far as they are worthy of serious consideration, are disposed of by what has already been said in this opinion.

Where the patient desires or consents that an operation be performed and unexpected conditions develop or are discovered in the course of the operation, it is the duty of the surgeon, in dealing with these conditions, to act on his own discretion, making the highest use of his skill and ability to meet the exigencies which confront him, and in the nature of things tie must frequently do this without consultation or conference with any one, except, perhaps, other members of his profession who are assisting him. Emergencies arise, and when a surgeon is called it is sometimes found that some action must be .taken immediately for the preservation of the life or health of the patient, where it is impracticable to obtain the consent of the ailing or injured one or of anyone authorized to speak for him. In such event the surgeon may lawfully, and it is his duty to, perform such operation as good surgery demands, without such consent. The case before us, however, does not fall within either of these two classes.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed. •