Sinkler v. Kneale , 401 Pa. 267 ( 1960 )

Opinion by

Mr. Justice Bok,

Preliminary objections were filed and sustained to a complaint by a child, per her father as natural guardian, alleging that as the result of prepartum injuries she was born Mongoloid.

The suit embraces four plaintiffs — father, mother, thirteen-year-old daughter, and the Mongoloid child. The mother was driving her ear with her daughter as passenger and at the time was one month pregnant with the infant plaintiff. She and the older daughter were injured when defendant’s car, according to the complaint, negligently struck the mother’s car in the rear.

The claims of the three older persons are pending, the Mongoloid infant being the sole appellant after her right of action was denied her.

The lower court felt bound by Berlin v. J. C. Penney Co., Inc., 339 Pa. 547 (1940), 16 A. 2d 28. This is a short opinion of less than a page and relies on 4 Restatement, Torts, §869, and on four cases, each from a foreign jurisdiction: Drobner v. Peters, 232 N. Y. 220 (1921), 133 N.E. 567; Dietrich v. Northampton, 138 Mass. 14 (1884), 52 Am. Rep. 242; Ryan v. PSCT, 18 N. J. Misc. 429 (1940), 14 A. 2d 52; Allaire v. St. Luke’s Hosp., 184 Ill. 359 (1900), 56 N.E. 638.

The Berlin case was the first appellate expression in Pennsylvania on the subject of injury sustained en ventra sa mere but there have been four lower court decisions, one before and three after Berlin : Kine v. Zuckerman, 4 Pa. D. & C. 227 (1924) ; Jacketti v. Pottstown Rapid Transit Co., 67 Montg. Co. 37 (1950); Rimpa v. Sears Roebuck & Co., 37 Erie 267 (1953); and VonElbe v. Studebaker-Packard Corp., 15 Pa. D. & C. 2d 635 (1958). The Kine and VonElbe cases upheld the right of action, while the Jaeketti and Rimpa cases followed Berlin, although in Rimpa the court said that it would in all likelihood have taken the other view if the question had been open.

By now all four jurisdictions on which Berlin relied have reversed themselves and at present uphold the right of action when the child is born alive: Woods v. Lancet, 303 N. Y. 349 (1951), 102 N.E. 2d 691; Amann v. Faidy, 415 Ill. 422 (1953), 114 N.E. 2d 412; Smith v. Brennan and Galbraith, 31 N. J. 353 (1960), 157 A. 2d 497; and Keyes v. Construction Service, Inc., Mass. , 165 N.E. 2d 912 (1960).

The parent case, both in this country and in England, is the Massachusetts decision first above cited, Dietrich v. Northampton, where Judge I-Iolmes in 1884 denied the right of action. He not only found no common law doctrine against it but felt it necessary to find some opposition to a statement by Lord Coke in the criminal law which is repeated by IV Blackstone’s Commentaries, p. 198: “To kill a child in its mother’s womb is now no murder, but a great misprision: but if the child be born alive and dieth by reason of the portion or bruises it received in the womb, it is murder in such as administered or gave them.”

Even if the criminal law is faint authority for a tort, the foregoing must show at least that the common law offers no bar to the suit. Judge Holmes’ real point d’appui for decision was that the unborn child was part of its mother. This was undoubtedly the medical view accepted by the law at the time, and it is precisely the view that has altered since.

The case has been effectively overruled by Keyes v. Construction Service, Inc., supra, decided April 4, 1960, where the Supreme Judicial Court of Massachusetts said: “We think it advisable that in respect to the subject of prenatal injury the law of this Commonwealth should be in general in harmony with that of the large and growing proportion of the other States. . . . There is no need to reverse the Dietrich decision which doubtless was right when rendered but we recognize that in view of modern precedent its application should be limited to cases where the facts are essentially the same.”

The facts in Dietrich were that the child was born prematurely, after four to five months from conception, when its mother fell on a defective highway and miscarried.

The case of Smith v. Brennan & Galbraith, supra (31 N. J. 353), decided January 11, 1960, is a compendium of the present stance of the law. Before 1949 twelve states, including Pennsylvania and the four whose cases are cited above in Berlin, denied the right of action, and two upheld it: California, under a statute? and Louisiana, under its civil code. Since 1949 seven states have overruled former decisions denying recovery, including the four above cited in Berlin, and nine states, dealing with the question for the first time, have upheld recovery. The eighteen states that now allow recovery are: California, Scott v. McPheeters, 33 Cal. App. 2d 629, 92 P. 2d 678 (1939); Connecticut, Prates v. Sears, Roebuck & Co., 19 Conn. Sup. 487, 118 A. 2d 633 (1955) ; Delaware, Worgan v. Greggo & Ferrara, Inc., 50 Del. 258, 128 A. 2d 557 (1956); Georgia, Tucker v. Carmichael & Sons, 208 Ga. 201, 65 S.E. 2d 909 (1951) ; Illinois, Amann v. Fauly, 415 Ill. 422, 114 N.E. 2d 412 (1953) ; Kentucky, Mitchell v. Couch, 285 S.W. 2d 901 (Ky. Ct. App., 1955) ; Louisiana, Cooper v. Blanck, 39 So. 2d 352 (La. App., 1923) ; Maryland, Damasiewicz v. Gorsuch, 197 Md. 417, 79 A. 2d 550 (1951); Massachusetts, Keyes v. Construction Service, Inc., Mass. , 165 N.E. 2d 912 (1960) ; Minnesota, Verkennes v. Corniea, 38 N.W. 2d 838 (1949); Mississippi, Rainey v. Horn, 221 Miss. 269, 72 So. 2d 434 (1954) ; Missouri, Steggall v. Morris, 363 Mo. 1224, 258 S.W. 2d 577 (1953) ; New Hampshire, Poliquin v. MacDonald, 101 N. H. 104, 135 A. 2d 249 (1957); New Jersey, Smith v. Brennan & Galbraith, 31 N. J. 353, 157 A. 2d 497 (1960) ; New York, Woods v. Lancet, 303 N. Y. 349, 102 N.E. 2d 691 (1951); Ohio, Williams v. Marion Rapid Transit, Inc., 152 Ohio St. 114, 87 N.E. 2d 334 (1949) ; Oregon, Mallison v. Pomeroy, 205 Ore. 690, 291 P. 2d 225 (1955) ; South Carolina, Hall v. Murphy, S. C. , 113 S.E. 2d 790 (1960).

At present eight states deny recovery. In two the courts note the recent trend and strongly indicate that reversal is likely. These are Michigan, in LaBlue v. Speaker, 35S Mich. 55S, 100 N.W. 2d 445 (1960), and Wisconsin, in Puhl v. Milwaukee Auto Ins. Co., 8 Wis. 2d 343, 99 N.W. 2d 163 (1960). In two other of these states the courts expressly said that they made no determination of the rights of a child born alive. These are Nebraska, in Drabbels v. Shelly Oil Co., 155 Neb. 17, 50 N.W. 2d 229 (1951), and Oklahoma, in Howell v. Rushing, 261 P. 2d 217 (Okla. Sup. Ct., 1953).

The remaining four states, denying recovery, are: Alabama, Stanford v. St. Louis-San Francisco R. Co., 214 Ala. 611, 108 So. 566 (1926) ; Rhode Island, Gorman v. Budlong, 23 R. I. 169, 49 Atl. 704 (1901); Tennessee, Hogan v. McDaniel, 319 S.W. 2d 221 (Tenn. Sup. Ct., 1958); Texas, Magnolia Coca Cola Bottling Co. v. Jordan, 124 Texas 347, 78 S.W. 2d 944 (1935).

Leading text writers have condemned the rule and advocated recovery: Prosser, Torts (2d ed. 1955), §36, pp. 174-75; 2 Harper & James, Torts (1956), §18.3. And see White, The Right of Recovery for Prenatal Injuries, 12 La. L. Rev. 383 (1952) ; Note, 36 Va. L. Rev. 611 (1950); Note, 48 Mich. L. Rev. 539 (1950); Note, 63 Harv. L. Rev. 173 (1949); Note, 35 Cornell L. Q. 648 (1950); Annotation, 10 A.L.R. 2d 1059, at 1071 (1950), and 27 A.L.R. 2d 1256 (1953). Prosser says that the trend toward allowing recovery “is so definite and marked as to leave no doubt that this will be the law of the future in the United States.”

The real catalyst of the problem is the current state of medical knowledge on the point of the separate existence of a foetus. In the Smith case Justice Proctor, speaking for the New Jersey Supreme Court in a unanimous decision said this: “The third reason for the rule denying recovery was the theory that an unborn child was a part of the mother, and therefore not a person in being to whom a duty of care could be owed. All the courts that have permitted recovery for prenatal injuries have disagreed with that theory. They have found that the existence of an infant separate from its mother begins before birth, . . . Medical authorities have long recognized that a child is in existence from the moment of conception, and not merely a part of its mother’s body. See 1 Beck, Medical Jurisprudence, 277 (11th ed. 1860) ; Herzog, Medical Jurisprudence, 683 et seq. (1931); Corner, Ourselves Unborn, 69 (1944) ; Patten, Human Embryology, 181 (1946); Maloy, Legal Anatomy and Surgery, 716 et seq. (2d ed. 1955).”

And in his dissenting opinion in Stemmer v. Kline, 128 N. J. L. 455 (E. & A. 1942), which was the case overruled by Smith v. Brennan, Chief Justice Brogan said: “While it is a fact that there is a close dependence by the unborn child on the-organism of the mother, it is not disputed today that the mother and the child are two separate and distinct entities; that the unborn child has its own system of circulation of the blood separate and apart from the mother; that there is no communication between the two circulation systems; that the heart beat of the child is not in tune with that of the mother but is more rapid; that there is no dependence by the child on the mother except for sustenance. It might be remarked here that even after birth the child depends for sustenance upon the mother or upon a third party. It is not the fact that an unborn child is part of the mother, but that rather in the unborn state it lived with the mother, we might say, and from conception on developed its own distinct, separate personality.”

As for the notion that the child must have been viable when the injuries were received, which has claimed the attention of several of the states, we regard it as having little to do with the basic right to recover, when the foetus is regarded as having existence as a separate creature from the moment of conception. Even Judge Holmes said, in Dietrich that “the argument would not be affected by tlie degree of maturity reached by the embryo at the moment of the organic lesion or wrongful act.” The question is primarily one of causation, and since medical proof of that is necessary, we now remove the bars from it in limine.

The order is reversed and the record remanded with a procedendo.