Appeal by plaintiff from the Circuit Court of Lake County; the
Hon. BERNARD M. DECKER, Judge, presiding. Heard in this court at
the February term, 1952. Judgment affirmed. Opinion filed April
1, 1952. Rehearing granted May 7, 1952. New opinion filed
September 9, 1952. Released for publication September 25, 1952.
MR. JUSTICE WOLFE DELIVERED THE OPINION OF THE COURT.
Rehearing granted May 7, 1952
Eleanor Amann filed a suit in the circuit court of Lake county against Abel Faidy to recover damages for injuries which she alleged she sustained in an automobile accident between the car she was driving, and the car Faidy was driving. She charged the defendant with numerous acts of negligence which caused her injuries. The defendant filed his answer and that part of the case is at issue, so we are not concerned about the suit of Eleanor Amann individually.
As the administratrix of the estate of William Joseph Amann, deceased, she filed a second count in which she alleges that on the 26th day of December 1949, she was operating her automobile on Lewis avenue at, or near the intersection of State Highway No. 120 in the City of Waukegan, Lake county, Illinois; that while so driving she was in the exercise of ordinary care. The defendant, Abel Faidy, negligently and carelessly ran and collided his automobile with the automobile of the plaintiff, causing severe personal injury to Eleanor Amann, and caused such injuries to William Joseph Amann, a minor, as to result in his death.
Count Two further alleges that appellant was operating her automobile in a southerly direction on Lewis avenue at or near the intersection of State Highway No. 120 in the City of Waukegan, County of Lake, State of Illinois; that she was in the exercise of ordinary care and that the deceased, riding with said appellant, and while in the exercise of ordinary care was involved in a collision with the appellee through appellee's negligence and causing such injuries to the minor as to result in his death; that the appellant was duly appointed administratrix of the estate of the minor and duly qualified for said office and has at all times and now is the administratrix of said estate; that the defendant was negligent in that he was operating his automobile at a high, excessive and dangerous rate of speed; that he negligently and carelessly failed to keep a lookout ahead or laterally; that by the exercise of ordinary care he could have stopped his automobile and prevented the collision; that he failed to give a warning or signal of his approach; and at the point and place of the accident, carelessly and negligently failed to observe an electric traffic control signal, and to bring his automobile to a stop in observance of the red signal and carelessly and negligently drove into Lewis avenue striking the automobile of appellant; that the deceased, prior to and on the date of December 26, 1949, was a living human entity, an infant en ventre sa mere; that as a result of the actions of appellee, the deceased sustained dislocated shoulders and a ruptured spleen; that as a result of the injuries the minor died on January 26, 1950; that deceased left him surviving his father, mother and three brothers; that deceased was at all times in the exercise of all due care and caution for his own safety; that the next of kin were at all times in the exercise of all due care for the deceased's safety; that the parents and brothers have been deprived of large sums of money and valuable services which deceased would have contributed to them. Plaintiff prays judgment in the sum of Fifteen Thousand Dollars ($15,000) against the defendant.
The defendant filed a motion to strike Count II of the complaint wherein he states that the injuries alleged were sustained by an infant en ventre sa mere; that Count II is based solely upon a claim for prenatal injuries; that there is no warrant of authority for maintaining the action of Count II under the law; that there is no warrant of authority for maintaining the action in Count II under any legislative enactment of the State of Illinois; that there is no cause of action under the laws of the State of Illinois or the common law. The trial court allowed the motion to strike Count II of the complaint, dismissed the cause of action set forth therein and rendered judgment against appellant for costs. From this judgment appellant appeals.
The basis for the motion to strike Count II of the complaint and entered judgment thereon, is based upon the case of Allaire v. St. Luke's Hospital, 184 Ill. 359. That case was decided by our Supreme Court in 1900. The facts in that case were that the mother, Ada A. Allaire, was entering St. Luke's Hospital for the purpose of being delivered of her unborn child; that while she was being conveyed to her room by an elevator there was an accident and her unborn baby was injured and was born a cripple. Several years later the child started a suit against the hospital for damages she sustained while she was an infant en ventre sa mere. The court followed the rule as laid down in the case of Dietrich v. Inhabitants of Northampton, reported in 138 Mass. 14, and there held that the action could not be maintained.
The case of Dietrich v. Northampton, supra, is the first recorded case in which this question was considered to come before any of our state Supreme Courts. The mother of the plaintiff between four and five months advanced in pregnancy, fell on a defective highway in the City of Northampton, she was injured and her child was also injured. The child was born prematurely and had symptoms that it was surviving for a few minutes after birth. Administration was taken out on the estate of the deceased child and an action was brought for the death of the child. The complaint alleged that it was the negligence of the city in the maintenance of their sidewalk that caused the mother to fall, and the death of the child. The court in its opinion stated: "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 this case the court held that at the common law an unborn child was but a part of the mother, and has no existence or being which could be the subject matter of injury distinct from the mother, and that the injury to it was but an injury to the mother; that in such case there was but one person, one life, that of the mother. This was the same holding that our own Supreme Court followed in the case of Allaire v. St. Luke's Hospital.
In the case of Magnolia Coca Cola Bottling Co. v. Jordon, 124 Tex. Com. App. 347, 78 Southwestern Reporter, second series at page 944 decided by the Court of Appeals of Texas, Mrs. Jordon, a pregnant woman, was injured in an automobile accident which caused her to give premature birth to twin babies. One of the babies it is claimed was severely injured in the accident. The court affirmed a judgment of the lower court and held that the law gives to parents no cause of action, and the loss of a child which dies as a proximate result of injury while it is still quick in the womb of its mother even though such injuries be inflicted by the negligence of the defendant.
In Lipps v. Milwaukee Electric Ry. & Light Co., 164 Wis. 272, 159 Northwestern Reporter, page 916, a similar action was started in the circuit court of Milwaukee county, Wisconsin. In this case it is claimed that the unborn child was injured through the negligence of the railway company, which caused it to be born subject to epileptic fits. The court sustained the demurrer to the complaint and entered judgment in favor of the defendant. The Supreme Court of Wisconsin, in passing upon the merits of the controversy quoted from Dietrich v. Northampton, supra, and stated: "Taking all the foregoing considerations into account, and further, that, as the unborn child was a part of the mother at the time of the injury, any damage to it which was not too remote to be recovered for at all was recoverable by her, we think it clear that the statute sued upon does not embrace the plaintiff's intestate within its meaning."
In Smith v. Luckhardt, 299 Ill. App. 100, Theresa M. Joller, a minor, by her mother and next friend, Theresa M. Joller Smith, started a suit against the defendants in the circuit court of Cook county, Illinois, for alleged personal injuries she sustained prior to her birth. The defendants were physicians and the charge of negligence on their account was that they treated the mother of the child with X-rays for an alleged tumor, and at the time the mother was pregnant and as a result of the negligent treatment they had given her, the child was born deformed. The Appellate Court there followed the law, as laid down in Dietrich v. Northampton, and Allaire v. St. Luke's Hospital, supra, and held that the action could not be maintained.
In the case of Bliss v. Passanesi, 95 Northeastern Reporter, second series, at page 206, the Supreme Court of Massachusetts again had the question presented to it as has been in the earlier case of Dietrich v. Northampton, supra, and in their opinion they say that that is still the law and they follow the rule as laid down in the Dietrich case and held that the action could not be maintained.
In Drabbels v. Skelly Oil Co., 50 Northwestern, second series, page 229, the Supreme Court of Nebraska held that an unborn child is a part of its mother until birth and as such has no judicial existence and, "Child born dead could not have maintained an action at common law for injuries received by the child while in its mother's womb, though at time of injuries the unborn child was viable and capable of separate and independent existence, and hence administrator of estate of deceased child could not maintain action under wrongful death statute limiting such action to case where wrongful act is such as would, if death had not ensued, have entitled the party injured to maintain an action to recover for injuries."
The appellants insist that since the case of Dietrich v. Northampton and Allaire v. St. Luke's Hospital, supra, that medical science has progressed to such a degree that the language used in those cases is not applicable now. That it is a well-known fact that a woman eight months' pregnant or even less, can be delivered from a child and the chances of it living and becoming a normal human being is a high percentage, and that we should disregard the precedent heretofore established by our Supreme Court and follow the more enlightened rule of medical science. They have cited quite a number of cases of highest courts of our sister states, also one case from the Circuit Court of Appeals of the District of Columbia. Each of these cases cite the dissenting opinion by JUSTICE BOGGS in the St. Luke's Hospital case, and has followed the law as promulgated by him in his dissenting opinion, and there are strong reasons pronounced in these different opinions why the old rule of law that such an action could not be maintained, should not be adhered to.
In the case of Cooper v. Blanck, 39 Southern Reporter, second series at page 352, the court of appeals of Louisiana had a similar question before it. Mrs. Cooper was lying in her bed in the rented premises of the defendant, when the plaster fell from the ceiling on the bed and struck her in the abdomen causing her to suffer great pain and, causing the premature birth of a child with which she was then pregnant some eight months. The child lived for several days, but died as a result of the prenatal injuries inflicted upon it by the falling plaster. Mr. and Mrs. Cooper then sued for the loss by the death of the child. The court reviewed numerous decisions from other jurisdictions that had this same question presented to them. In Allaire v. St. Luke's Hospital, supra, there was a strong dissenting opinion by JUSTICE BOGGS, and the Louisiana court quotes at length, from the dissenting opinion, which has been followed in several state courts and one federal court of appeals. "The argument is, that at the common law an unborn child was but a part of the mother, and had no existence or being which could be the subject-matter of injury distinct from the mother, and that an injury to it was but an injury to the mother; that in such case there was but one person, one life, that of the mother. A foetus in the womb of the mother may well be regarded as but a part of the bowels of the mother during a portion of the period of gestation; but if, while in the womb, it reaches that prenatal age of viability when the destruction of the life of the mother does not necessarily end its existence also, and when, if separated prematurely, and by artificial means, from the mother, it would be so far a matured human being as that it would live and grow, mentally and physically, as other children generally, it is but to deny a palpable fact to argue there is but one life, and that the life of the mother. Medical science and skill and experience have demonstrated that at a period of gestation in advance of the period of parturition the foetus is capable of independent and separate life, and that, though within the body of the mother, it is not merely a part of her body, for her body may die in all of its parts and the child remain alive, and capable of maintaining life, when separated from the dead body of the mother. If at that period a child so advanced is injured in its limbs or members, and is born into the living world suffering from the ...