DocketNumber: 42,381
Judges: Price, Parker
Filed Date: 1/20/1962
Status: Precedential
Modified Date: 11/9/2024
The opinion of the court was delivered by
The question in this case is whether the parents of a child who dies prior to birth as the result of another’s negligence have a cause of action under the wrongful-death statute.
The trial court held they do not and plaintiff parents have appealed.
A brief summary of the ¿mended petition follows:
For several months prior to February 29, 1960, plaintiff mother
Allegations concerning the alleged acts of negligence on the part of defendants need not be noted.
Separate demurrers to the amended petition by the three defendants on the ground that pleading failed to state facts sufficient to constitute a cause of action were sustained — whereupon plaintiff parents have appealed.
By stipulation of the parties the appeal has been dismissed as to defendant Bright.
Our wrongful-death statute (G. S. 1959 Supp. 60-3203) provides that when the death of one is caused by the wrongful act or omission of another, an action therefor may be maintained against the wrongdoer if the deceased — had he lived — might have maintained an action against such wrongdoer for an injury for the same act or omission.
The statute malees it clear that the right of action created exists only in cases wherein the injured person could himself have maintained an action for damages, had he lived. It is clear, therefore, that plaintiff parents can maintain no action for damages on account of the death of the child unless the child, had he lived, could have maintained an action against defendants for the injury inflicted upon him before his birth — that is to say, unless the child, had he lived, could have maintained an action for his prenatal injuries.
Although the question of the right of a child to recover for its prenatal injuries has not been decided by this court, the matter has been passed upon in a number of states as is shown by the annotations found at 10 A. L. R. 2d 1059 and 27 A. L. R. 2d 1256. One of the leading cases on the subject appears to be Williams v. Transit, Inc., 152 Ohio St. 114, 87 N. E. 2d 334, 10 A. L. R. 2d 1051 (1949), in which it was held that an unborn viable child injured by another’s negligence may, after birth, maintain an action for such injury. The rationale of the decisions supporting the right of a child to maintain an action for its prenatal injuries appears to be that an unborn viable child is capable of independent existence and hence should be regarded as a separate entity, and to deny it such right would bring about extremely harsh results.
On the second proposition — and which also is new in this state, that is, whether, under wrongful-death statutes similar to ours, parents can maintain an action for the death of their stillborn child allegedly caused by the negligence of another — the courts of other jurisdictions are divided, as is shown by the annotation on the subject appearing at 10 A. L. R. 2d 639, following the reported case of Verkennes v. Corniea, 229 Minn. 365, 38 N. W. 2d 838, 10 A. L. R. 2d 634 (1949).
In the Verkennes case, which was an action against the attending physician and a hospital, it was alleged that at the time the mother entered the hospital her unborn child was still alive and that such child, in the exercise of reasonable and prudent care on the part of defendants would have been born alive a normal and healthy child; that by reason of the failure of defendants to properly attend her the child died, and that their negligence caused the death of the undelivered child. The supreme court of Minnesota held that the action could be maintained under a wrongful-death statute substantially identical to ours.
In passing, it should be noted that since the Verkennes case was decided in 1949 the trend, as shown by the A. L. R. 2d Blue Book Supplement Service, has been to allow recovery under wrongful-death statutes for the death of a stillborn child allegedly caused by the negligence of another.
In Howell v. Rushing (Okla.), 261 P. 2d 217 (1953), the supreme court of Oklahoma was confronted with the identical question. The opinion notes that the plaintiffs relied upon the rule announced in the Verkennes case from Minnesota, above, whereas the defendant relied on the rule as applied in the Drabbels case from Nebraska, above. The court followed the Nebraska rule and denied recovery.
Much could be written on the question involved in this case. On the other hand, decisions from other jurisdictions are collected and discussed in the A. L. R. 2d annotations above referred to, and we therefore believe that no occasion exists for an extended opinion. The interested reader is referred to those annotations, and also to 16 Am. Jur., Death, § 75, p. 56, et seq., and 1961 Cumulative Supplement thereto, and to the case note on the subject at 9 Kan. L. Rev. 343.
For purposes of the demurrers the statements of the amended petition are to be taken as true. It would appear that inherent in the allegation that seven days after the collision plaintiff mother “was thereupon delivered of a perfectly formed male child, which did not survive birth” is the fact that on the date of the alleged negligent act the child was in a viable state. With full recognition
The orders sustaining the demurrers to the amended petition are therefore reversed.