Damasiewicz v. Gorsuch

Marbury, C. J., delivered the opinion of the Court. The question in this case is whether a child, suffering prenatal injuries inflicted through the negligence of others, can bring a suit against such others for its damages. Appellant here, an infant, by his father and next friend, alleged in his declaration that his mother was riding in an automobile operated by one of the defendants, and ⁴¹⁹ that this automobile was struck by another, operated by the other defendant. As a result, the appellant, then en ventre sa mere, was prematurely born and is now suffering with permanent injuries causing him to lose the sight of both of his eyes.

He claims the drivers of both automobiles caused his injuries by their negligence, and asks for damages against them. Demurrers were filed by both defendants. These demurrers were sustained by the trial court, without leave to amend, and judgment was entered in favor of both defendants for costs. From this judgment the plaintiff appeals.

In the Seventh Part of the Reports of Sir Edward Coke, published in 1738, there is contained at folio 7 the Earl of Bedford’s case, Michaelmas Term (1586), 28 and 29 Elizabeth. The Earl had died, leaving two granddaughters, both of whom were under age, and the questions involved were very technical matters involving the right of the King to void certain leases of the Earl’s land during the time the granddaughters were in ward. In the course of the report and discussion of the case, Lord Coke made many illustrative statements, one of which was: “* * * if Tenant in Tail makes a Lease for 30 or 40 Years, rendering Rent, which is avoidable by the Issue in Tail, and afterwards Tenant in Tail dies without Issue, his Wife with Child with a Son, by which the Donor enters, and as to him avoids the Lease, and afterwards the Son is born, the Lessee re-enters, the Son at his full Age may by Acceptance of the Rent affirm the Lease”. Then follows: “And altho’ films in útero matris, est pars vicerum matris, (vide 3 Ass. pl. 2, 22 Ass. pl. 94. 22 Edwardi tertii Corone 180.

Stamford 21.) yet the Law in many Cases hath Consideration of him in Respect to the apparent Expectat. of his Birth.” This seems to have been the earliest statement on the subject found in the English reports. In Blacksone’s Commentaries (1765), Book 1, Chapter 1, pp. 129, 130, is found the following: “Life is the immediate gift of God, a right inherent ⁴²⁰ by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb. For if a woman is quick with child, and by a potion or otherwise, killeth it in her womb; or if anyone beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter. But the modern law doth not look upon this offence in quite so atrocious a light, but merely as a heinous misdemeanor. “An infant in ventre sa mere, or in the mother’s womb, is supposed in law to be born for many purposes.

It is capable of having a legacy, or a surrender of a copy-hold estate, made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. And in this point the civil law agrees with ours.” In the case of Wallis v. Hodson, reported in 2 Atkyn’s Chancery Reports 114, an infant sued for the estate of her grandfather. He died in 1724 leaving an only son who died within a week after his father, leaving a widow.

The plaintiff, who was the daughter of the son, was unborn at that time, but was born about five months later. Lord Hardwicke said: “The principal reason I go upon in the question is, that the plaintiff was in ventre sa mere at the time of her brother’s death, and consequently a person in rerum natura, so that both by the rules of the common and civil law, she was, to all intents and purposes,' a child, as much as if born in the father’s lifetime. “First, As to the common law, there is the trite case of an infant in ventre sa mere being vouched in a common recovery; a mother also may justify the detaining of charters on behalf of it; a devise to him is good, by the opinion of Treby and Powell, in Scatterwood and Edge, 1 Salk 229, a bill may be brought in his behalf, and this court will grant an injunction in his favour to stay waste, 2 Vern. 710. Musgrave versus Parry et al’. ⁴²¹ “Secondly, As bo the civil law, nothing is more clear, than that this law considered a child in the mother’s womb absolutely born, to all intents and purposes, for the child’s benefit. “The last passage in the Digest is more explicit than any other; but then it makes a difference between a child in ventre sa mere in esse at the father’s death, and only conceived,, the latter is not considered as having any relation to the intestate, being, according to a term made use of there, not animax.” In the case of Thellusson v. Woodford, (1798-1799) 4 Vesey, Jr. 227, there are pages of discussion by counsel and the justices of the rights of an unborn child to take under a will. Justice Buller said: “The next objection is, that, supposing, he meant a child en ventre sa mere, and had expressly said so, yet the limitation is void.

Such a child has been considered as an non-entity. Let us see, what this non-entity can do. He may be vouched in a recovery, though it is for the purpose of making him answer over in value. He may be an executor.

He may take under the Statute of Distributions. He may take by devise. He may be entitled under a charge for raising portions. He may have an injunction; and he may have a guardian.

Some other cases put this beyond all doubt. * * * “In Doe v. Clarke, the words ‘that whereever such consideration would be for his benefit, a child en ventre sa mere shall be considered as absolutely born’ were used by me, because I found them in the Book, from whence the passage was taken. But there is no reason for so confining the rule. Why should not children en ventre sa mere be considered generally as in existence? They are entitled to all the privileges of other persons.” Then, after discussion of the earlier cases, he said: “The Court have gone farther.

They have held, that a child en ventre sa mere is to be considered as in being. It is immaterial, therefore, whether he is born, or not.” ⁴²² Other cases which decided that an unborn child may inherit are Doe dem. Clarke v. Clarke (1795), 2 Blackstone 399, and Trower v. Butts (1823), I Simons & Stuart 181. In the case of The George and Richard, L. R. III, Admiralty and Ecclesiastical 466, decided in 1871, an unborn child was held entitled to share in the damage caused by a collision between two ships, and its proctor had a right to a claim, although, until the child was born, a reference could not be made.

Sir Robert Phillimore, who delivered the opinion, in discussing the matter, said: “It has been argued, that the peculiar language of Lord Campbell’s Act requires the actual existence of the claimant as a condition precedent to a right of action. I am not of this opinion. Although, as has been said, twenty-five years have passed since Lord Campbell’s Act, and this particular question has not arisen for decision, it seems to have been considered in one case as within the purview of this statute.” The case cited was Blake v. Midland Railway Co., 18 Q. B. 93, 109. The admiralty case, and the cases involving the construction of wills and the rights of inheritance are largely based upon the civil law which was administered in the Ecclesiastical courts.

Lord Hardwicke’s statement in Wallis v. Hodson, supra, covers both the civil and common law; but that was a case under the Statute of Distributions. The history of that statute shows that its main object was to make the jurisdiction of the Ecclesiastical courts more extensive than was allowed by the common law. Villar v. Gilbey, L. R. (1907) A. C. 139, 149.

There does not seem to have been any case either in England or in America which passed upon the right of an unborn child to recover damages for a tort until the case of Dietrich v. Inhabitants of Northampton, 138 Mass. 14 , decided in 1884. The opinion in that case was written by Justice Oliver Wendell Holmes, then sitting on the Supreme Judicial Court of Massachusetts. The case was a suit by the administrator of a child, which was born prematurely as a result of the fall of its mother ⁴²³ on a highway of the town of Northampton. The child was not directly injured, but the shock to its mother caused the premature birth and it was unable to survive, although it lived for ten or fifteen minutes after birth.

Suit was brought under a statute imposing liability on the township. Justice Holmes cited the rule of criminal liability laid down by Lord Coke, although he expressed some doubt that this represented the common law, and then said: “For, even if Lord Coke’s statement were the law of this Commonwealth, the question would remain whether the analogy could be relied on for determining the rule of civil liability. Some ancient books seem to have allowed the mother an appeal for the loss of her child by a trespass upon her person. Abbrev.

Plac. 26, col. 2 (2 Joh.) Lincoln rot. 3. Fleta, I. c. 35, § 3, and Sir Samuel Clarke’s note, citing 45 H. III, rot. 22. Which again others denied. 1 Britton, (Nichols’s ed.) 114, See Abbrev. Plac. 295, col. 2 (29 Ed. I.) Norht. rot. 43.

Kelham’s Britton, 152, n. 14.” Then, after some further discussion, he concluded: “Taking all the foregoing considerations into account, and further, that, as the unborn child was a part of the mother at the time of the injury, any damage to it which was not too remote to be recovered for at all was recoverable by her, we think it clear that the statute sued upon does not embrace the plaintiff’s intestate within its meaning * * *”. It will be noted that, while Justice Holmes cites no case, his decision is based upon the same theory stated by Lord Coke in the Earl of Bedford’s case, namely, that until birth, the child is a part of the mother. Within a few years of Justice Holmes’ decision, a case •was decided in the Irish courts, Walker v. Great Northern Railway, (1891) 28 L. R. Ireland 69. In that case, the mother of the unborn child was a passenger on the defendant’s railway, and it was claimed that by negligence of the railway company, the child was permanently injured, crippled and deformed.

After her birth, the suit was brought, and a demurrer was filed. Opinions were filed by four justices, all of whom discussed the ⁴²⁴ question, and sustained the demurrer. The ground for the decision, however, was not that the unborn child was a part of its mother, which, as we have shown, was the basis of Justice Holmes’ decision. The Irish justices all based their decision upon the point that it was not a case of trespass, but was a case of breach of duty of the carrier to its passengers.

The passenger was the mother, and not the child; the carrier knew nothing about the child, and, in so far as the carrier was concerned, it was a nonentity and no present duty to it could be inferred. Chief Justice O’Brien, in his opinion, quoted from Thellusson v. Woodford, Wallis v. Hodson, Doe v. Clarke, and The George and Richard, supra, and then specifically declined to decide that a person could not be held for a tort willfully committed on an unborn child, but based his decision on the ground already indicated. He said: “Now these are substantially the authorities referred to on behalf of the plaintiff; and having regard to these authorities, I wish it to be clearly understood that in deciding this case I do not intend to go this length, viz. that if a person knowing that a woman is enceinte wilfully inflicts injuries on her with a view to injuring the child, and the child is born a cripple, or after its birth becomes a cripple, owing to the injuries so wilfully inflicted, an action does not lie at the suit of the child so crippled. I am far from saying that such action would lie under such circumstances at the suit of the child when born; but before I would hold an action under such circumstances did not lie, I would desire to hear further discussion as to the limitations of the rule that a child in útero is considered as actually born when it is necessary for the benefit of such unborn child so to consider it. “I would like to have it further discussed whether that rule is limited to taking benefits by succession and bequest, or whether it would apply to a case where the child has been so wilfully injured in the womb that it is born a cripple, or becomes one after its birth, and is thereby permanently deprived of the ability to earn ⁴²⁵ a livelihood.

In the case I put, it would be manifestly for the benefit of the child that it should be considered as born at the time the injuries were inflicted, and that an action could be maintained.” In Allaire v. St. Luke’s Hospital, 1900, 184 Ill. 359 , 56 N. E. 638 , 640, 48 L. R. A. 225, the expectant mother of the plaintiff had gone to a hospital for the purpose of delivery of her child. Four days before the child was Dorn, the hospital elevator, in which she was a passenger, got out of control and not only injured her, but injured the child so that when he was born, his left limb, left side, and left hand were wasted and shortened, and he was crippled for life. The mother settled her case against the hospital for damages, but the child brought suit and a demurrer to his declaration was sustained. The court, in a per euriam opinion, discussed Dietrich v. Inhabitants of Northampton, supra, and Walker v. Railway Co., supra, and said: “That a child before birth is, in fact, a part of the mother, and is only severed from her at birth, cannot, we think, be successfully disputed.

The doctrine of the civil law and the essclesiastical and admiralty courts, therefore, that an unborn child may be regarded as in esse for some purposes, when for its benefit, is a mere legal fiction, which, so far as we have been able to discover, has not been indulged in by the courts of common law to the extent of allowing an action by an infant for injuries occasioned before its birth.” Justice Boggs wrote a dissenting opinion which is one of the ablest on record on the plaintiff’s side of the case. He started by conceding that there was no similar case at common law, but quoted Lord Mansfield and Cooley on Torts to the effect that the growth of the common law is the application of general principles to new sets of facts. He said: “A foetus in the womb of the mother may well be regarded as but a part of the bowels of the mother during a portion of the period of gestation; but if, while in the womb, it reaches that prenatal age of viability when the destruction of the life of the mother does not neces ⁴²⁶ sarily end its existence also, and when, if separated prematurely, and by artificial means, from the mother, it would be so far a matured human being as that it would live and grow, mentally and physically, as other children generally, it is but to deny a palpable fact to argue there is but one life, and that the life of the mother. Medical science and skill and experience have demonstrated that at a period of gestation in advance of the period of parturition the foetus is capable of independent and separate life, and that, though within the body of the mother, it is not merely a part of her body, for her body may die in all of its parts and the child remain alive, and capable of maintaining life, when separated from the dead body of the mother.

If at that period a child so advanced is injured in its limbs or members, and is born into the living world suffering from the effects of the injury, is it not sacrificing truth to a mere theoretical abstraction to say the injury was not to the child, but wholly to the mother? * * * “If, in the contemplation of the common law, life beings as soon as the infant is able to stir in the mother’s womb, and that an injury inflicted upon an infant while in the womb of the mother shall be deemed murder if the infant survive the wound during prenatal life, but succumbs to it, and dies from it after being born, and if every legitimate infant in ventre sa mere is to be deemed as born for all purposes beneficial to the child, why should it be supposed the common law would have denied to an infant born alive the right to recover damages for the injury inflicted upon it while in the womb of the mother? Had such injury, though inflicted on the child while in the mother’s womb, been sufficient to cause the death of the infant after it had been bom alive, the common law would have regarded the injury as having been inflicted upon a human being, and punished the perpetrator accordingly; and, that being true, why should the infant which survives be denied the right to recover damages occasioned by the same injury?” ⁴²⁷ Justice Boggs then concluded: “The law should, it seems to me, be that whenever a child in útero is so far advanced in prenatal age as that, should parturition by natural or artificial means occur at such age, such child could and would live separable from the mother, and grow into the ordinary activities of life, and is afterwards born, and becomes a living human being, such child has a right of action for any injuries wantonly or negligently inflicted upon his or her person at such age of viability, though then in the womb of the mother.” In 1901, the Supreme Court of Rhode Island had before it a case brought by the father and next-of-kin of a child which was injured before birth by the fall of plaster in a tenement rented by the plaintiff from the defendant. The child was prematurely born, and shortly afterward died. The action was brought under the state statute which was patterned after Lord Campbell’s Act.

The earlier cases were discussed, and the court said in its opinion: “one cannot maintain an action for injuries received by him while in his mother’s womb; and consequently his next of kin, under the statute after his death, cannot maintain an action therefor”. Gorman v. Budlong, 23 R. 1 . 169, 49 A. 704, 707 , 55 L. R. A. 118. In Nugent v. Brooklyn Heights Railroad Co., 154 App. Div. 667 , 139 N. Y. S. 367, 368, decided in 1913 by the Appellate Division of the Supreme Court of New York, a child was injured thirty-six days before his birth by the negligent starting of a car. He was deformed, and the court said that even if the mother might recover for her mental pain, the mental pain the child would suffer, and the deformity, could not be included in her recovery, and the father, if he could recover at all, could do so only so far as the injury enlarged the expense of the child’s maintenance and entailed loss of service.

The court then said: “So, however the subject be viewed, there is a residuum of injury for which compensation cannot be had save at the suit of the child, and it is a question of grave import whether one may wrongfully deform or otherwise injure an unborn child without mak ⁴²⁸ ing amends to him after birth.” The earlier cases were discussed, particularly Walker v. Great Northern Railway, supra, and the court decided the case on the ground that the carrier owed no duty to the unborn child, as it was not a passenger. The carrier was held to be liable only for those who visibly offer themselves for carriage, and the recovery was denied. While the court noted the Dietrich and Allaire cases, it decided the case on the same ground as the decision in the Walker case. It may here be appropriately stated, however, that in a later case decided in the New York Court of Appeals in 1921, Drobner v. Peters, 232 N. Y. 220 , 133 N. E. 567, 568 , 20 A. L. R., 1503, the plaintiff’s mother, while carrying him, fell into a coal hole in a sidewalk.

Plaintiff was born eleven days later, and brought an action for damages. The court posed the question before it in the following words: “Does the present case permit the establishment by judicial decision of the rule that the innocent infant need not bear unrequited the consequences of another’s fault? In the mother’s womb he had no separate existence of his own. When born he became a person.

He carried the injuries out into the world with him. His full rights as a human being sprang into existence with his birth. No longer may it be urged that the mother alone is injured. The presence of the injured child refutes that theory.

Did he succeed to his mother’s rights?” and then answered it: “May this court attach an unnatural meaning to simple words and hold independently of statute that a cause of action for prenatal injuries is reserved to the child until the moment of its birth and then accrues ? The formulation of such a principle of legal liability against precedent and practice may be a tempting task to which sympathy and natural justice point the way, but I cannot bring myself to the conclusion that plaintiff has a cause of action at common law. The injuries were, when inflicted, injuries to the mother. No liability can arise therefrom except out of a duty disregarded, and defendant owed no duty of care to the unborn child in the present case apart from the duty to ⁴²⁹ avoid injuring the mother.” In that decision, six justices concurred, but Judge Cardozo dissented, although, unfortunately, he did not file an opinion.

In 1913, the Supreme Court of Missouri decided a case in which, in September, the mother of a child was a passenger on a street railway. When she was leaving, the car was negligently put in motion, throwing her to the ground, and injuring the arm and body of her unborn child. The child was born in December and died, allegedly from his injury, the following July. A suit was brought by the father and mother.

This was Buel v. United Railway Co., 248 Mo. 126 , 154 S. W. 71 , 45 L. R. A., N. S., 625. The case was brought under a statute which gave right of action to a father and mother for the death of a child, a variation of Lord Campbell’s Act. The court held that in the case of a child injured before birth, no right of action accrued to it after birth by common law, and there was no prior right to sue which the statute could take hold of and cause to survive the death of the person injured. In 1916, the Supreme Court of Wisconsin had before it the case of Lipps v. Milwaukee Electric Ry. & Light Co., 164 Wisc. 272, 159 N. W. 916, 917 , L. R. A. 1917B, 334.

This was an action by a guardian ad litem to recover damages for personal injuries sustained in defendant’s car by plaintiff while a foetus en ventre sa mere at the age of about five months and before she could be born viable. It was claimed that she suffered from epileptic fits as a direct result of the prenatal injuries. The court discussed the preceding cases, but based its decision on the fact that the child at the time it was injured could not have been born viable, saying: “We go no further than the facts of the case require, and hold that no cause of action accrues to an infant enventre sa mere for injuries received before it could be born viable. “Very cogent reason may be urged for a contrary rule where the infant is viable, and especially so in cases where the defendant, being a doctor or midwife, has ⁴³⁰ negligently injured an unborn child. As to such cases we express no opinion.” The Court of Appeals of Louisiana in 1928 decided the case of Cooper v. Blanck, 39 So. 2d 352 , in which the parents of a child which had died after a premature birth caused by a prenatal injury when plaster fell upon its mother, sued the landlord of the premises.

The court decided the case in favor of the plaintiffs under the provisions of the civil law which it stated was the basis of the Louisiana jurisprudence. In the case of Stanford v. St. Louis-San Francisco RR. Co., 1926, 214 Ala. 611 , 108 So. 566 , which was a suit by the personal representatives of an infant dying as a result of prenatal injuries wrongfully received, the court, on the strength of the cases we have previously discussed, denied the right of the representatives of the child to bring the suit, stating: “The authorities, however, are unanimous in holding that a prenatal injury affords no basis for an action in damages, in favor either of the child or its personal representative.” The Supreme Court of Canada had a case before it in 1933, Montreal Tramways v. Leveille, 4 D. L. R. 337, in which the mother of the child was thrown from the car to the street and injured. Two months later the child was born with club feet which, it was claimed, was the result of the injury.

A judgment was obtained, and affirmed by the Court of King’s Bench, and then appealed. The case was determined by the civil law of Quebec. The court cited some of the English cases and the American cases which we have heretofore discussed, and said that it must be admitted that the great weight of judicial opinion in the common law courts denies the right of a child to maintain an action for prenatal injuries. Under the civil law, however, the court held that the wrongful act of the company produced its damage on the birth of the child, and the right of action was then complete, and recovery was based, not upon the ground that the company failed to perform its contract of carriage with the mother, but on the ground that it committed an indepen ⁴³¹ dent tort against the child.

The appeal, therefore, was dismissed. The Texas Supreme Court decided in 1935 the case of Magnolia Coca Cola B. Co. v. Jordan, 124 Texas 347 , 78 S. W. 2d 944 , 97 A. L. R. 1513. This was an automobile accident in which the mother was injured and caused to give premature birth to twin babies who died as a result of their injuries after living nineteen days. The court