On appeal from the Middlesex Circuit Court.
For the appellant, William P. Braun and John Milton.
For the respondents, Andrew O. Wittreich.
The opinion of the court was delivered by
PARKER, J. The suit is against appellant, a physician, for malpractice resulting as claimed in the ruination of a child in its mother's womb at the time of the acts in question. Four different causes of action are set out in the complaint.
1. Action by the child, which is living, but only a living body incapable of speech or action, without sight or hearing. The father appears as next friend. The child is now five or six years old. The fundamental question on this branch of the case is whether this action by the child will lie.
2. Claims for damages by both the parents, that they were put to heavy expense because of the alleged malpractice.
3. A claim by the mother (sounding in contract) for physical injury to herself because of negligent and improper treatment. As to this there was a voluntary nonsuit.
4. A claim by the father as husband of the mother per quod, repeating the allegations of count 3. On this also, a voluntary nonsuit was entered.
The original answer related only to issues of fact, but later the defendant gave a notice, which amounts to a demurrer to the first and second counts. The court allowed the "demurrer" as an amendment to the answer, and allowed a further amendment of the answer setting up the two year statute of limitations; but this last seems to have dropped out of the case.
The important question, and the one about which the argument mainly revolves, arises under the first count, and is whether, for injury sustained by the foetus before birth because of negligence of the defendant, the child when born has a right of action. If yea, the judgment should be affirmed. If nay, it follows that it should be reversed. We have given extended and careful consideration to this question, and conclude that at common law there is no such right of action; and there being no statute establishing such right in this state, it is non-existent, and there should have been a judgment for the defendant in the trial court on the first count.
While there is some divergence of judicial opinion on the point, the great weight of authority in this country is to the effect that, as in cases of injury causing death, there was no right of action at common law, and such right existed only as the product of a statute. A glance at the decisions in a number of states, and one in Canada, will support the foregoing statement.
In Massachusetts the leading case is Dietrich v. Northampton, 138 Mass. 14, decided in 1884, where the court distinguishes criminal from civil liability, and at the foot of page 15 remarks: "But 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. Yet that is the test of the principle relied on by the plaintiff, who can hardly avoid contending that a pretty large field of litigation has been left unexplored until the present moment."
In Rhode Island we have the case of Gorman v. Budlong, 23 R.I. 169; 49 A. 704, decided in 1900. The negligence there consisted of the falling of a ceiling. The child was born prematurely and died three days later, and suit was
under the Death Act. The court said in part: "Inasmuch as, to enable the plaintiff to recover, the act, neglect or default must have been such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the question at once presenting itself is, can one maintain an action for injuries received by him while in his mother's womb?" and at the conclusion of the opinion added: "In our opinion, one cannot maintain an action for injuries received by him while in his mother's womb; and consequently his next of kin, under the statute, cannot maintain an action therefor, and so the demurrer must be sustained on this ground."
In New York in 1913 we have the case of Nugent v. Brooklyn Heights Railway Co., 154 App. Div. 667; 13. N.Y. Sup. 367, decided in the appellate division, which seems to have leaned to the view that in an ordinary case of negligence there would have been a right of recovery, but overruled the complaint because the accident occurred in a street car and the case depended upon a contract. However, in the later case of Drobner v. Peters, 232 N.Y. 220, decided by the Court of Appeals in 1921, that court, overruling the appellate division in an ordinary negligence case, disapproved the decision in the Nugent case and expressly held that "defendant owed no duty of care to the unborn child in the present case apart from the duty to avoid injuring the mother."
In Pennsylvania in 1924 the case of Kine v. Zuckerman, 4 Pa. Dist. & Co. R. 227, was before one of the inferior courts, which held that there was a right of recovery; but in 1940 the Supreme Court of Pennsylvania in Berlin v. Penney Co., 339 Pa. 547; 16 A.2d 28, held, in a short 339 Pa. 547; 16 A.2d 28, held, in a short opinion by Chief Justice Schaffer, and citing 4 Restatement of Torts, § 869, that there was "no warrant for holding, independent of a statute, that a cause of action for prenatal injuries to a child accrues at birth."
In Illinois there are two reported cases, the first decided in 1900, being the case of Allaire v. St. Luke's Hospital, 184 Ill. 359; 56 N.E. Rep. 638; 48 L.R.A. 225; and Smith v. Luckhardt, 299 Ll. App. 100; 19 N.E. Rep. (2 d) 446. In both these cases the court held that there was no right of
action at common law and that if any recovery was to be had it must be by virtue of a statute.
In Michigan in the case of Newman v. Detroit, 281 Mich. 60, decided in 1937, there was an accident on a street car, but the case was not treated as a case of contract and in two long and careful opinions it was held that the overwhelming weight of authority was adverse to a recovery.
In Missouri, in the case of Buel v. United Railways Co. (1913), 248 Mo. 126; 154 S.W. Rep. 71, the suit was under the Death Act which was held not to apply, but the court remarked obiter: "We have not been able to find any precedent at common law establishing the right of a child injured while en ventre sa mere but subsequently born alive, to bring an action thereafter for the injuries so received."
In Alabama, in the case of Stanford v. St. Louis, & c ., Railroad Co., 214 Ala. 611, in 1926, the same result ...