ACTION BY UNBORN INFANT. *

I. Introductory.

1. In general.

2.

Unborn infants take when.

3. Direct conveyance to unborn infants.

4. Conveyance to uses, trusts, remainders, etc. 5. Degree of development necessary.

II. Right to Recover for Injuries to its Person. 6. In general.

7. As to right of action.

8. Same-At common law.

9. Same-Same-A pertinent inquiry.

10. Same-Some holdings.

11. Same-English view.

12. Same-No precedent for action.

13. Same-Same-Nonsequitur.

14. Same-Is infant part of mother, or separate life?

15. Same-Negligence and Duty Relative. 16.

Same-Distinction of cases.

17. Same-Mother having settled or recovered damages.

18. Same-By administrator.

III. Right to Recover Damages for Injury to Parent.

19. Right to maintain action.

20. Same-But one action to be brought.

1. In General.-An unborn child is regarded as in esse for all purposes beneficial to itself, though not for the benefit of another person.1 But this doctrine is confined

to children who are conceived in lawful wedlock. A bastard child, while en ventre sa mere, is not regarded as in esse, because such child could not take at common law until he got a reputation of being a child of a particular person, and such a reputation could not be gained before the child was born. This rule regarding unborn children has been of long standing. In the early common law they had a writ de ventre inspiciendo which lay3 in favor of the heir apparent, or of a devisee, where a woman was "suspect." If the wife was found to be with child she was removed to a castle, and there safely kept until her delivery.4

*Copyright by James M. Kerr. All rights reserved. 1 As for casting estate by the curtesy, See Marsellis v. Thalhimer, 2 Paige Ch. (N. Y.) 35, 21 Am. Dec. 66, or giving a court jurisdiction to partition estate between living child and such child en ventre sa mere; Gillespie v. Nabors, 59 Ala. 441, 31 Am. Rep. 20.

2 This has been the rule ever since the early case of Metham v. Duke of Devon, 1 P. Wms. 529.

3 Co. Litt. 86.

4 See Ex parte Wallop, 4 Bro. Chan. Case, 90; Ex parte Bellette, 1 Cox Chan. Case, 297, Theaker's Case, Cro. Jack. 686; Dursley v. Berkley, 6 Ves. 251, 5 Rev. Rep. 285.

9

3. Direct Conveyance to Unborn Infants.-An unborn infant could take property by direct conveyance or deed of gift under the civil law, but it is wholly at variance with the principles, precepts and maxims of the common law, which, in conveyances immediately and directly to the grantee, required four things, to-wit: 1. A grantor; 2. A grantee; 3. A thing to be granted, and 4. Actual delivery, 10 The common law rule in this respect has been generally, if not universally, adopted in this country.11 But there are well recognized exceptions to the common law rule--some of which have been engrafted by statute.12 Thus in a future contingent estate created by deed, the grantee thereof need not be in esse at the time of the execution, but he must be in esse before the estate can vest. 18 On a conveyance by a hus

5 Thellusson v. Woodford, 2 Ves. Jr. 319, 4 Ves. Jr. 277, 11 Rev. Rep. 112; 1 Bos. & P. N. R. 357, 4 Rev. Rep. 205, 8 Rev. Rep. 104.

6 And if mother subsequently delivered of two children, they may both be appointed executors. Thellusson v. Woodford, supra; Bacon's Abr. tit. "Infancy." C, and "Executors," A, 7; Tyler on Inf. & Covet., § 154.

7 Thellusson v. Woodford, supra.

8 Wallis v. Hodson, 2 Atk. 115; Thellusson v. Woodford, supra.

9 See Co. Inst. 50, Co. Litt. 2, 3 Peiken's, § 43, Touch. C. 9, No. 4, Shep. Touch. 325.

10 See Dupree v. Dupree, 1 Bush. (N. Car.) Eq. 164, 59 Am. Dec. 590. The common law rule has now been changed by statute in North Carolina, so that on deed to a woman and her chidren, a child en ventre sa mere will take thereunder. Heath v. Heath, 114 N. Car. 547, 19 S. E. Rep. 155.

11 See Phelan v. San Francisco, Cal. 531; Hunter v. Watson, 12 Cal. 363, 73 Am. Dec. 543; Barr v. Schroeder, 32 Cal. 609, 610; Hulick v. Scovil, 9 Ill. 191; Faloon v. Simshauser, 130 Ill. 649, 22 N. E. Rep. 835; Morris v. Candle, 173 Ill. 1, 9, 69 Am. St. Rep. 282, 52 N. E. Rep. 1036, 44 L. R. A. 489; Harriman v. Southam, 16 Ind. 190; Austin v. Show, 92 Mass. (10 Allen) 552; Natchez v. Minor, 9 Smed. & M. (Miss.) 554, 48 Am. Dec. 727; Douthitt v. Stinson, 63 Mo. 268; Don v. Hay, 21 N. J. L. (1 Zab.) 174; Brown v. Combs, 29 N. J. L. (5 Dutch) 36; Towar v. Hale, 46 Barb. (N. Y.) 361; Newsom v. Thompson, 2 Ired. (N. Car.) L. 277; Grimes v. Orrand, 2 Heisk. (Tenn.) 298; Lillord v. Ruckers, 9 Yerg. (Tenn.) 64; Russell v. Topping, 5 Mc. L. C. C. 194, 202, 21 Fed. Case, 60.

12 See Heath v. Heath, 114 N. Car. 547, 19 S. E. Rep. 155.

13 See Hall v. Leonard, 18 Mass. (1 Pick.) 27; Newsom v. Thompson, 2 Ired. (N. Car.) L. 277; Morris v.

of as great solicitude to the law, as its prop. erty and worldly wealth. As a matter of public policy, it is of more importance to the state that infants shall be born into the world with perfect bodies and sound minds, than that they shall be born into the world with a silver spoon in their mouths. With health, a sound body and industry they can acquire the "silver spoon ;" but no amount of worldly wealth can procure a sound body for a congenital cripple. This branch of the law may be regarded as in its formation stage. The adjudicated cases in this country and England are few. Such cases as have occurred are appended, and results of the deliberations and reasonings of the courts given. It may be premised that the dissenting opinions in some of these cases have the stronger arguments for their support, and are regarded as the better law, and will undoubtedly ultimately become established as the law of the land.

The well-known conservatism of bench and bar, alike, as a class-the tendency to cling tenaciously to that which is established and eschew that which is new and novel; to follow in the footsteps of others rather than reason a matter out on principle--and their slavery to "precedent" is nowhere in our jurisprudence more markedly apparent than in the reasonings of some of the judges who seek to justify a ruling against the right of an infant to maintain such an action.

7. As to Right of Action.-As to whether an unborn infant, afterwards born alive, in such a stage of gestation and development as to be capable of living, can maintain an action to recover compensation in damages for injuries sustained while in its mother's womb, may properly be regarded as an open one in this country. It is true the question has arisen and been presented in Illinois, Massachusetts and Rhode Island, but it is not

cumstances, maintain an action to recover damages sustained, through the wrongful or negligent act of another, while en rentre sa mere. In all other states of the union such a question is res integra, and must be settled on principle and not on precedent.

8. Same-At Common Law.—At common law actions were maintainable to recover damages occasioned by injuries to the person of the plaintiff, whether inflicted intentionally or through negligence of the defendant, The governing principle illustrated by such cases is that the common law, by way of damages. gave redress for personal injuries inflicted by the wrong or negligence of another. 23 Is an unborn infant a "person" within the purview of the doctrine of the common law? Science has demonstrated unmistakably, and in a manner to defy contradiction, that an unborn infant, after a certain stage of development, is to be regarded as a distinct being, fully capable of living separate from the mother. While en ventre sa mere, though a distinct person, it draws its sustenance from the mother, the same as it does, or should, after delivery. But this fact does not render it any less a separate and distinct being capable of individual injuries for which it may receive redress in the courts. Where injured, in this stage, by the negligent act or tort of another it is entitled to the same protection as it would be if in arms and helpless at its mother's breast. The decisions recognize this fact, in part at least, and where such an injury, received at such a stage of development, results in death, the wrong-doer is held for homicide. If the injury is slightly below the severity producing death, does this debar the right to have the wrong redressed? The case of an infant in the womb of its mother injured by the wrongful act or negligence of another is thought to be clearly within this

settled in either of these jurisdictions. It is true the decisions rendered seem to militate against the right of such an infant to maintain such an action for damages under any circumstances. But some of these decisions are by a divided court, and the others are thought to be limited to the particular state of facts and surrounding circumstances of each particular case, and not to commit those states unalterably to a declaration, on principle, that an infant cannot, under any cir

fact the plaintiff was unborn when the alleged injuries were inflicted would have operated to deny a right of action. The argument is that at the common law an unborn child was but part of the mother, and had no existence or being which could be the subject-matter of injury distinct from the mother, and that an injury to it was but an injury to the mother;

23 Boggs, J., in Allaire v. St. Louis Hospital, supra.

that in such case there was but one person-one life that of the mother."24

9. Same-Same-A Pertinent Inquiry.— "If, in the contemplation of the common law, life begins 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 en 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 born 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?"25

10. Same-Some Holdings.-It has already been noticed that the adjudicated cases on this point are few, and some of them are not well-considered. 26 The general tendency of all these cases is to the holding that an infant, after birth, cannot maintain an action to recover for injuries to its person, sustained while en ventre sa mere. 27 In the solitary English case dealing with the question, Walker v. Great Northern Railway Com

24 See dissenting opinion of Boggs, J., in Allaire v. St. Luke's Hospital, 184 Ill. 359, 75 Am. St. Rep. 176, 56 N. E. Rep. 628, 48 L. R. A. 225.

25 Boggs, J., in Allaire v. St. Luke's Hospital (1900), 184 Ill. 359, 75 Am. St. Rep. 176, 56 N. E. Rep. 638, 48 L. R. A. 225, citing in the discussion, Co. Litt. 36, 3 Co. Inst. 50, 1 Pr. Wms. 343, 10 Am. & Eng. Ency, of L. (1st Ed.) 624.

The per curiam opinion in Allaire v. St. Luke's Hospital, 184 Ill. 339, 75 Am. St. Rep. 176, 56 N. E. Rep. 638, 48 L. R. A. 225, is particularly open to the objection.

27 Allaire v. St. Luke's Hospital (1900), 184 Ill. 359, 75 Am. St. Rep. 176, 56 N. E. Rep. 638, 48 L. R. A. 225 (vigorous dissent by Mr. Justice Boggs), relying on Dietrich v. Northampton (1884), 138 Mass. 14, 52 Am. Rep. 242, and Walker v. Great Northern Ry. Co. (1891, L. R. 28 Ir. 69; Gorman v. Budlong (1901), 23 R. I. 169, 91 Am. St. Rep. 629, 49 Atl. Rep. 704, 55 L. R. A. 118.

pany, 28 the child's mother was a passenger on defendant's railroad and suffered injuries while on the trip, being in advanced state of pregnancy, for which she recovered damages. The infant plaintiff shortly after its birth brought suit to recover damages for injuries sustained by it at the time the mother was injured. The declaration was defective and did not disclose the disregard of a duty by the defendant which it owed to the plaintiff. 29 The judges were unanimously of the opinion that the action could not be maintained. Whether such an action could be maintained, under any circumstances, by an infant who was en ventre sa mere at the time of the alleged injury, was not involved in the issue and not properly before the court, although elaborately and learnedly discussed by some of the judges; and while the case is of interest, although the opinions expressed are purely obiter dictum upon this point, the judges (except Mr. Chief Justice O'Brien, who expressly declined to commit himself on the question) came to the conclusion announced in the above paragraph.

11. Same-English View. In the only English case, already referred to, the decision is mere dictum on this point; this dictum is to the effect that "the action does not lie in analogy to the criminal law, under which law if a child born alive afterwards dies of injuries received while in utero, this is murder in the person who inflicted them. 30 But there is no true analogy between such crime and such a tort. Crimes are offenses against the public; they are acts or attempts which tend to the prejudice of the whole community, and, as a general rule, the criminal intent and the act charged to be criminal must concur to constitute a crime. Tort, on the other hand, is private wrong sustained by some person or body of persons. The sanction of one is punishment; the result of the other is compensation" (dictum).81 Another view, and in direct opposition to the one above announced, is found in the dissenting opinion of Boggs, J., in Allaire v. St. Luke's Hospital. 32

28 (1891), L. R. 28 Ir. 69.

29 See par. 18, this article.

30 1 Russell on Crimes (5th Ed.), 646, note e.

31 Walker v. Great Northern Ry. Co. (1891), L. R. 28 Ir. 69.

32 (1900), 184 Ill. 359, 75 Am. St. Rep. 176, 56 N. E. Rep. 638, 48 L. R. A. 225.

12. Same-No Precedent for Action.Some of the precedent-bound judges deny the right of action to the infant merely because they cannot find a precedent. It is submitted that every settled doctrine of law always had its "first case.' In the case of Dietrich v. Northampton, 33 the court say: "No case, so far as we know, has ever decided that, if the infant survived, it could maintain an action for injuries, received by it while in its mother's womb." This is by no means conclusive that the action may not be maintained, "yet, in view of the fact that, as said by Mr. Justice O'Brien, 3 4 similar circumstances must have before occurred, it is entitled to great weight, especially where the right to maintain the action is doubtful." 35 This reasoning is regarded as decidedly unsatisfactory, virtually "begging the question," and not in keeping with what we have a right to expect from men of alert minds whose public duty it is to "wrestle" with knotty points and new and novel questions. Lord Mansfield has well disclosed: "The law would be an absurd science were it founded upon precedents only. Precedents are to illustrate principles, and to give them a fixed authority."36 Mr. Judge Cooley, treating of precedents, among other things says: "New and peculiar cases must also arise from time to time for which the court must find the governing principle, and this may either be referred to some principle previously declared, or to some one which now, for the first time, there is occasion to apply."37 This is one of the very questions which are new, and for which courts must find the governing principle, not a precedent.

while pregnant with it,"38 which is manifestly a non sequitur.

14. Same-Is Infant Part of Mother, or Separate Life?-The degree of development in an unborn infant necessary to perfect inchoate rights, has already been alluded to.39 It has not been thought necessary, for the purposes of this article, to go fully into the scientific question. It is regarded as no longer open to dispute that during the latter stages of development before the period of parturition an unborn infant is as distinct a being from its mother, as when helpless in her arms drawing nourishment from her breast. Mr. Justice Boggs pertinently remarks that "a fœtus 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 parental age of viability when the destruction of the life of the mother does not necessarily 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?10 The better opinion and sounder principle is thought to be, that if an infant en ventre sa mere is injured in its own proper person by the wrongful act or negligence of another, at a period in its fœtal existence at which it is capable of independent and sepa

38 Allaire v. St. Luke's Hospital (1900), 184 Ill. 359, 75 Am. St. Rep. 176, 56 N. E. Rep. 638, 48 L. R. A. 225. 89 See par. 5, this article.

40 Dissent in Allaire v. St. Luke's Hospital, supra.