APPEAL from the Appellate Court for the Second District;
heard in that court on appeal from the Circuit Court of Lake
County; the Hon. BERNARD M. DECKER, Judge, presiding.
MR. CHIEF JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 21, 1953.
The question in this case is whether there can be recovery for the wrongful death of a child who was negligently injured en ventre sa mere and who, after his birth, died as a result of those injuries. Because the Wrongful Death Act allows recovery only where the "act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages" (Ill. Rev. Stat. 1951, chap. 70, par. 1,) the result depends upon the right of one negligently injured en ventre sa mere to recover for those injuries. Holding that such an action would not lie, the circuit court of Lake County sustained a motion to strike the count of the complaint which asserted it, and entered judgment for the defendant on that count. The Appellate Court for the Second District first reversed, and then, upon the ground that modification of existing precedent was more appropriately the function of the court of last resort, allowed a rehearing and affirmed. (Amann v. Faidy, 348 Ill. App. 37.) We granted leave to appeal.
An initial question is raised by defendant's argument that the complaint contains no allegation that there was a living child who died subsequent to birth. The complaint was filed by Eleanor Amann, as administratrix of the estate of William Joseph Amann, deceased, and individually. The count in question alleged that on December 26, 1949, as the result of defendant's negligent operation of his automobile, the cars which plaintiff and defendant were driving collided, causing personal injuries to plaintiff and such injuries to William Joseph Amann, "a living human entity en ventre sa mere," as to cause his death on January 26, 1950; that he left surviving as his next of kin his parents and three brothers; that on January 18, 1951, plaintiff was appointed administratrix of the estate of William Joseph Amann, deceased, by the probate court of Lake County; that she duly qualified and has since acted as administratrix, and that she brought this action pursuant to the Wrongful Death Act for the benefit of the next of kin. In our opinion this complaint is hardly susceptible of the construction that plaintiff was appointed administratrix of the estate of a child who died before birth. In any event, defendant's motion to strike was required by section 45 of the Civil Practice Act to "point out specifically the defects complained of." (Ill. Rev. Stat. 1951, chap. 110, par. 169.) The motion did not attack the complaint on this ground. We therefore treat the complaint, as did the Appellate Court, as presenting a case of prenatal injuries which, after the child was born, caused its death.
The question thus presented has not been considered by this court since the decision in Allaire v. St. Luke's Hospital, 184 Ill. 359, (1900). This court then adopted the opinion of the Appellate Court, (Allaire v. St. Luke's Hospital, 76 Ill. App. 441, Mr. Justice Windes dissenting,) which relied upon Dietrich v. Inhabitants of Northampton, 138 Mass. 14, decided in 1884, and Walker v. Great Northern Railway Co. 28 L.R. (Ire.) 69, decided in 1891, both of which denied recovery for a prenatal injury. The basic reason assigned by the Appellate Court in the Allaire case and adopted by this court was that the courts of common law, while regarding an unborn child as in esse for some purposes, had not extended the doctrine to allow an action for injuries sustained before birth. Mr. Justice Boggs dissented, and his dissenting opinion has been heavily relied upon by the many courts which now recognize a right of action for injuries sustained by a viable child en ventre sa mere.
Dietrich v. Inhabitants of Northampton, 138 Mass. 14, appears to have been the first case either in England or the United States to pass upon the right of an unborn child to recover damages for a tort. In that case, the mother of the deceased slipped and fell upon a defective highway in the defendant town. "At the time, she was between four and five months advanced in pregnancy, the fall brought on a miscarriage, and the child, although not directly injured, unless by a communication of the shock to the mother, was too little advanced in foetal life to survive its premature birth." It lived but ten or fifteen minutes. The administrator of the child's estate brought an action for the benefit of the next of kin. Mr. Justice Holmes, speaking for the court, said that, so far as known, no case had ever decided that, if the infant survived, it could maintain an action for injuries received while in its mother's womb and "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."
In Walker v. Great Northern Railway Co. of Ireland, 28 L.R. (Ire.) 69, a pregnant woman, who suffered an injury upon defendant's railway, gave birth to a deformed child. The question presented for decision was whether the child could maintain an action for its deformities caused by defendant's negligence. Two of the justices, following the Dietrich case, expressed the view that the child was not in esse at the time of the wrong, being neither a person, passenger, nor a human being. The other two regarded the action as one brought upon the contract of transportation with the mother, with no duty of care owed by the defendant carrier to the unborn child whose presence was unknown.
Allaire v. St. Luke's Hospital, 184 Ill. 359, and Dietrich v. Inhabitants of Northampton, 138 Mass. 14, were uniformly followed until 1933 when the Supreme Court of Canada, in Montreal Tramways v. LeVeille, 4 D.L.R. 337, (1933) held that a child was entitled to recover for prenatal injuries, rejecting the defenses (1) that the child was not in esse at the time of the accident, but was a part of the mother, and (2) that a contractual obligation with the child was lacking. Subsequently, decisions of the District Court for the District of Columbia, and in Ohio, Louisiana, Maryland, Georgia and New York, reflecting the realistic approach to the problem stated by Mr. Justice Boggs in his dissenting opinion in Allaire v. St. Luke's Hospital, 184 Ill. 359, have held that an unborn child, viable and capable of existing independently of the mother at the time injuries are wrongfully inflicted, may, after birth, maintain an action for such injuries. (Bonbrest v. Kotz, 65 F. Supp. 138, (1946); Williams v. Marion Rapid Transit, Inc. 152 Ohio St. 114, 87 N.E.2d 334, (1949); Cooper v. Blanck, 39 So.2d (La. App.) 352, (decided in 1923 but not released for publication until 1949;) Damasiewicz v. Gorsuch 79 A.2d (Md.) 550, (1951); Tucker v. Howard L. Carmichael & Sons, Inc. 208 Ga. 201, 65 S.E.2d 909, (1951); Woods v. Lancet, 303 N.Y. 349, 102 N.E.2d 691, (1951); Jasinsky v. Potts, 153 Ohio St. 529, 92 N.E.2d 809, (1951). California has reached the same result, influenced perhaps by a special statutory provision. (Scott v. McPheeters, 33 Cal.App. 629, 92 P.2d 678, (1939).) And, in Minnesota it has been adjudged that an action lies for prenatal injuries to an unborn viable child even if the child be born dead. Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838, (1949).
Cases to the contrary, all subsequent to the Dietrich and Allaire cases, denying a right of action for prenatal injuries, are Gorman v. Budlong, 23 R.I. 169, 49 A. 704, (1901); Buel v. United Railways Co. 248 Mo. 126, 154 S.W. 71, (1913); Lipps v. Milwaukee Electric Railway & Light Co. 164 Wis. 272, 159 N.W. 916, (recovery sought for a non-viable child) (1916); Drobner v. Peters, 232 N.Y. 220, 133 N.E. 567, (not adhered to in Woods v. Lancet, 303 N.Y. 349, 102 N.E.2d 691,) (1921); Stanford v. St. Louis-San Francisco Railway Co. 214 Ala. 611, 108 So. 566, (1926); Magnolia Coca Cola Bottling Co. v. Jordan, 124 Tex. 347, 78 S.W.2d 944, (1935); Newman v. City of Detroit, 281 Mich. 60, 274 N.W. 710, (1937); Smith v. Trostler, 299 Ill. App. 100, (1939); Berlin v. J.C. Penney Co., Inc. 339 Pa. 547, 16 A.2d 28, (1940); Stemmer v. Kline, 128 N.J.L. 455, 26 A.2d 489 (but see dissenting opinion, 128 N.J.L. 459, 26 A.2d 685,) (1942); Bliss v. Passanesi, 326 Mass. 461, 95 N.E.2d 206, (1950); Drabbels v. Skelly Oil Co. 155 Neb. 17, 50 N.W.2d 229, (1951).
Writers who have considered the question have not only long condemned and deplored the illogical rationale of the doctrine denying a right of action for prenatal injuries but have unanimously urged that a viable child, who survives birth, should be permitted, upon proper proof, to recover for injuries incurred before birth. Morris, Injuries to Infants En Ventre Sa Mere, 58 Cent. L.J. 143 (1904); Kerr, Action by Unborn Infant, 61 Cent. L.J. 364 (1905); Albertsworth, Recognition of New Interests in Law of Torts, 10 Cal. L. Rev. 461 (1922); Frey, Injuries to Infants En Ventre Sa Mere, 12 St. Louis L. Rev. 85 (1927); Straub, Rights of Action for Prenatal Injuries, 33 Law Notes 205 (1930); James, Scope of Duty in Negligence Cases, 47 N.W. Law Review 778, 786, (1953). See: Notes, 34 Harv. L. Rev. 549 (1921); 6 Cornell L.Q. 341 (1921); 44 Yale L.J. 1468 (1935); 20 Minn. L. Rev. 321 (1936); 36 Mich. L. Rev. 512 (1938); 34 Minn L. Rev. 65 (1949); 48 Mich. L. Rev. 539 (1950); 35 Cornell L.Q. 648 (1950); 1951 Wis. L. Rev. 518; 50 Mich. L. Rev. 166 (1951); 63 Harv. L. Rev. 173 (1949-50); 2 DePaul Law Rev. 97; Prosser on Torts, sec. 31, pp. 188-190 (1941).
When the Allaire case was decided in 1900, there were two cases available as precedents, and both of those cases had been but recently decided. Since that time many courts have dealt with the problem, and their opinions have been supplemented by the analyses and comments of students of the problem. It is appropriate, therefore, that we re-examine the question in the light of the broader information now available.
As they emerge from the many opinions which have now considered the problem, the chief grounds urged in support of the rule denying a viable child a right of action to recover for prenatal injuries have been (1) the lack of precedent; (2) the difficulty of determining the existence of a causal relation between a prenatal injury and the death or the condition of the child and the consequent possibility of fictitious claims; (3) the absence of a duty to the unborn child because it is thought to have no separate being apart from its mother. And where the child has died after birth and an action is brought under a wrongful death statute, recovery has been denied on the ground that since the child injured en ventre sa mere could not recover for prenatal injuries, its parents or next of kin could not recover for its death. Gorman v. Budlong, 23 R.I. 169, 49 A. 704; Buel v. United Railways Co. 248 Mo. 126, 154 S.W. 71; Newman v. City of Detroit, 281 Mich. 60, 274 N.W. 710; Smith v. Trostler, 299 Ill. App. 100; Drabbels v. Skelly Oil Co. 155 Neb. 17, 50 N.W.2d 229.
Principal reasons advanced in support of allowing recovery where the injuries occur when the child is viable are: (1) an unborn viable child, being capable of independent physical existence, should be regarded as a separate entity from the mother; (2) the law recognizes the separate existence of an unborn child for the purpose of protecting his property rights and to protect him against criminal conduct; (3) a wrong is inflicted for which there is no remedy unless there is recognition of the legal right of a child to commence life unimpaired by physical or mental defects caused by the negligence of others while it was a viable child en ventre sa mere; and (4) lack of precedent should not bar recovery where a wrong has been committed.
Turning, then, to the reasons which have prompted the denial of recovery, we consider first the alleged lack of common-law precedent. It has been said that Justice Holmes, unable to find any precedent for the action for prenatal injuries, believed that the common law afforded no remedy, whereas a more accurate statement, according to Salmond, Torts, 346 (10th ed., Stallybrass, 1945,) would have been that there was no English authority on either side of the question. As the Supreme Court of Georgia forcefully pointed out, there is no common-law precedent denying recovery: "Thus it is seen that Blackstone says that, in contemplation of the common law, life begins when the child is able to stir in the mother's womb. It can have a legacy, can own an estate, and a guardian can be assigned to it. It cannot seriously be denied that the purpose of the common law in allowing the appointment of a guardian for the unborn child is to make available processes of the law for the protection and preservation of the properties belonging to the child. There is nothing in the common law to indicate that it would withhold from such a child its processes for the purpose of protecting and preserving the person as well as the property of such child. It would therefore seem to us to be an unwarranted reflection upon the common law itself to attribute to it a greater concern for the protection of property than for the protection of the person. * * * If the killing of the unborn child is regarded by the law as being sufficient injury to society to justify taking the life of the perpetrator of the crime, then, to be logical and just to ...