Hornbuckle v. Plantation Pipe Line Co.

Hawkins, Justice.

This case is here on certiorari from the Court of Appeals, excepting to a holding by that court, in Plantation Pipe Line Co. v. Hornbuckle, 93 Ga. App. 391 (91 S. E. 2d 773), that “A bom child cannot maintain an action for tortious injuries sustained by it as an embryo or foetus not quick in its mother’s womb,” in which opinion that court, in reversing the trial court, stated: “Since the plaintiff was not quick in her mother’s womb at the time of the injuries complained of, the court erred in overruling the general demurrer to the petition.” Held:

“For every right there shall be a remedy” (Code § 3-105), and “A physical injury done to another shall give a right of action,” (Code § 105-601), and “Every person may recover for torts committed to himself.” Code § 105-107. Where a child is born after a tortious injury sustained at any period after conception, he has a cause of action. Kelly v. Gregory, 125 N. Y. S. 2d 696 (282 App. Div. 542); Tucker v. Howard L. Carmichael & Sons, 208 Ga. 201, 206 (65 S. E. 2d 909). “One cannot examine the cases in which a child, physically or mentally deformed for life as a result of prenatal injuries caused by the wrongful act of another, has been denied a right of recovery for such injuries, without being impressed by the harshness of such a result.” 10 A. L. R. 2d 1059, 1071. See also 27 A. L. R. 2d 1250, 1259. As was said in the Tucker case (208 Ga. 201, 206), supra, “It would be contrary to every principle of right and justice, which are the very essence of law, to deny such rights to the injured child.” At what particular moment after conception, or at what particular period of the prenatal existence of the child the injury was inflicted is not controlling, for, as was said in Morrow v. Scott, 7 Ga. 535, 537, “In . . . general, a child is to be considered as in being, from the time of its conception, where it will be for the benefit of such child to be so considered.” While we realize that cases such as this might present extreme difficulties as to proof, we are not concerned with that question here. The petition alleges that the plaintiff, who is now in life, received prenatal injuries caused by the alleged negligent operation of an automobile by the defendant, which caused it to collide with the automobile in which the plaintiff’s mother was riding while pregnant, which resulted in the plaintiff being born with a deformed right foot, right ankle, and right leg, and in passing upon the demurrer these allegations must be taken as true. If a child born after an injury sustained at any period of its prenatal life can- prove the effect on it of a tort, it would have a right to recover. The trial court having overruled a general demurrer to the petition, the Court of Appeals erred in reversing that judgment.

Argued May 15, 1956 Decided June 12, 1956 Rehearing denied July 11, 1956 and July 24, 1956. G. Ernest Tidwell, John L. Westmoreland, John L. Westmoreland, Jr., for plaintiff in error. Moise, Post <& Gardner, B. Emerson Gardner, contra.

Judgment reversed.

All the Justices concur, except Almand, J., who dissents. Duckworth, C. J., concurs in the judgment, hut not in all that is said in the opinion.