Doe v. Roe , 10 Del. 14 ( 1875 )

The Court,

Gilpin, C. J.,

charged the jury: That the existence of independent, separate life in the child after birth is a fact to be proved by competent and credible testimony in such a case as this, and the burden of proving this fact rests on the defendant in it, and therefore they must be satisfied from the evidence which they had heard at the bar of the court that the newly born child in question was wholly brought forth from the body of the mother, and that it was born alive, having an independent circulation and existence of its own, in itself and of itself, not being dependent upon the mother, but entirely independent of her, a life and circulation existing in the child apart from the mother by force of the child’s own proper, inherent vitality. Whether the child of which Mrs. Angelica S. Hall was delivered on or about the 25th of April, 1871, was born alive, having such an independent circulation and existence of its own, was a question of fact to be determined by the jury from all the evidence before them. The court cannot pass upon that question or express any opinion in regard to it. It is proper, however, that we should say to you that in such a case as this there are no legal presumptions in favor of the existence of life in a newly born child, on the contrary, the fact of life, independent life and existence in it, must be proved as any other fact in order to entitle the father of it to claim and hold the real estate in question for the term of his own life as tenant by the courtesy. Mere foetal life, that is to say, that life which is incepted in the womb of the mother, and which is derived from and dependent upon the mother, is not sufficient for this purpose. On the contrary, the child’s life must in fact be distinct from and independent of the mother. It must have an independent existence of its own, manifested by an independent circulation within its own body after birth. Respiration or breathing is certainly evidence of life, but we do not think it is necessary to prove the fact of respiration from actual observation if such' independent circulation is established and shown. It has been held that life ' may exist in a newly born child without proof that it was observed to have breathed ; indeed, it has been held that life may exist for a time without respiration. It is only one of the signs which manifest the existence of life. There are other signs or indications of life, among which the beating of the heart and pulsation of the arteries after the separation of the child from the body of the mother may be considered satisfactory evidence of life in the child, because they show the fact that circulation has been established in the body of the child and was maintained and carried on in the body of the child independently of the mother, it having then no connection with the mother. Which fact, namely, the fact of an independent circulation after the navel cord has been severed, may be considered by the jury as evidence that the child in this case had a separate and independent existence or life of its own and was born alive, although there was no proof from observation that the child had ever actually breathed.

If, therefore, the jury should be satisfied from the evidence that the child which was brought forth from the body of Mrs. Angelica S. Hall was bom alive, having an independent circulation and existence of its own in the sense and meaning in which he had endeavored to explain the matter to them, their verdict should be in favor of the defendant, or not guilty of the trespass and ejectment in the declaration alleged. Otherwise, it should be in favor of the plaintiff, or guilty thereof.

The defendant had a verdict.