Appeal from the Circuit Court of Kane County, Sixteenth
Judicial Circuit; the Hon. JOHN KRAUSE, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
The plaintiff brought this suit, individually and as Administratrix of the Estate of Lorraine Rapp, Deceased. Her complaint alleged that on May 23, 1964, the time of the injury, she was pregnant with a living, viable child, later named Lorraine Rapp; that the defendant, on that date, through negligence or wilful misconduct in driving her automobile, proximately caused permanent injuries to the plaintiff and to the unborn child, from which the child died.
The question of liability for the death of the unborn child was raised before the trial court by the defendant's motion for summary judgment, which the court granted. The balance of the plaintiff's complaint, relating to her own personal injuries, went to trial before a jury. The trial court, at the close of all the evidence, directed a verdict for the plaintiff on the question of liability. The jury returned a verdict in favor of the plaintiff in the sum of $500. The plaintiff appealed from both the summary judgment on the wrongful death claim and from the amount of damages assessed by the jury in her own personal injury action.
In the wrongful death action, the pleadings, affidavits and depositions before the court, indicated that on May 23, 1964, the date of the auto accident, the plaintiff was approximately four and one-half months pregnant; that she had felt movement of the fetus prior to this, and further, experienced "signs of life" and movement of the fetus thereafter, but that during the months of August, September and October, these movements did not appear as often and finally ceased; and that on November 18, 1964, the said child was stillborn.
At the time of the accident, the plaintiff was thrown into the steering wheel and was bruised along the lower left portion of her abdomen, side, and back. She suffered stomach cramps and internal bleeding thereafter. The plaintiff's obstetrician saw her immediately after the accident and prescribed rest and observation. The doctor again saw her on June 1, at which time she complained of a dull, low backache and general discomfort, but no severe pain. The doctor stated that she next saw the plaintiff on June 30, and again on July 14; that in June the pregnancy looked to be about the size of a four-month gestation, but by July 14 the size had increased markedly, to about the equivalent of a seven- or eight-month gestation.
The doctor saw the plaintiff regularly thereafter. About the middle of October, at which time the doctor said the plaintiff was past due, she observed that the patient was too large and the fetus' head was not engaged. She ordered an x ray on October 27 because she did not hear any heart tones, and the x ray indicated a hydrocephalic child. The child, who was taken stillborn from the plaintiff on November 18, 1964, by a surgical type delivery which required a crushing of its head, also had a meningocele, which is not uncommon with hydrocephalics. The doctor indicated that as a result, she did not know what caused the condition. No autopsy was performed.
The doctor, when asked her opinion as to a causal connection between the injury to the plaintiff on May 23, which she had observed, and the subsequent stillborn birth, answered that she did not know the direct cause or causal relationship. She testified in her deposition ". . . what's the sequence of events here, I wouldn't be able to say. There is a probability but not a ____ ____ there is a possibility but the probability is minor."
In Amann v. Faidy, 415 Ill. 422, 114 N.E.2d 412 (1953), at page 432, the court, in overruling Allaire v. St. Luke's Hospital, 184 Ill. 359, 56 N.E. 638 (1900), held that there could be a wrongful death action in behalf of a viable child, who suffered prenatal injuries and was thereafter born alive, but subsequently died as a result of those injuries. The court enumerated the various policy and precedent arguments both favoring and disfavoring the determination that a cause of action could exist 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.
The language of Amann sets forth two requirements. The first is that the child be born alive. The issue of whether a wrongful death action would lie if the child had not been born alive was not before the court; and the court at pages 423 and 424, in defining the issue before it; at page 427, in referring to various legal articles urging a course of action in behalf of "a viable child, who survives birth"; and at page 432, in setting forth its holding clearly limited its decision to a pronouncement that such an action would lie if the child were born alive and subsequently died as a result of prenatal injuries.
The second requirement in Amann found in the statement and cases cited at page 426 is that the child be viable and capable of existing independently of the mother at the time the injuries are wrongfully inflicted. At page 431, the court defined a viable fetus as one sufficiently developed for extrauterine survival, normally a fetus of seven months or older.
Subsequently, the Appellate Court extended the holding in Amann. It held that there was no valid basis for distinguishing whether the injuries were inflicted upon the fetus at a time it was viable as opposed to nonviable; that if the child were later born alive, it should have a cause of action. Daley v. Meier, 33 Ill. App.2d 218, 178 N.E.2d 691 (1961). Also see: Sana v. Brown, 35 Ill. App.2d 425, 426, 183 N.E.2d 187 (1962).
The factual situation in the case at bar is different from that in either Amann or Daley, supra. Here the injuries were inflicted at a time the fetus was nonviable, and the child was born dead. We are asked to determine whether a wrongful death action may exist in such a case. This subject is treated in an annotation found in 15 ALR3d 992, entitled "Death Action Unborn Child."
In discussing whether or not a wrongful death action may be maintained for the death before birth of a child as a result of injuries sustained while in its mother's womb, the annotation refers to a number of decisions which suggest a rather general division of authority on the question.
In those jurisdictions which have held such an action is maintainable, the courts, with the exception of one Georgia case, have held a wrongful death action may be maintained for the death of an unborn child, where there was a viable fetus. Apparently, only Porter v. Lassiter, 91 Ga. App. 712, 87 S.E.2d 100 (1955), has permitted ...