Tursi v. New England Windsor Co., 100132

Citation111 A.2d 14,19 Conn.Supp. 242
Decision Date11 January 1955
Docket NumberNo. 100132,100132
CourtSuperior Court of Connecticut
PartiesWayne J. TURSI et al. v. NEW ENGLAND WINDSOR COMPANY et al.

Cole & Cole, Hartford, for plaintiffs.

Warren Maxwell and Francis J. McCarthy, Hartford, for the named defendant New England Windsor Co.

Day, Berry & Howard, Hartford, for the defendant J. V. Motor Lines, inc.

RYAN, Judge.

This is a negligence action arising out of an accident on September 8, 1953, at which time the plaintiff, an unborn child of about eight months' gestation, received injuries. The plaintiff was born on October 27, 1953, and brings this action through his parents as next friends.

Both defendants have demurred to the complaint on the ground that there is no right of action to a child when born for injuries done it before birth. The issue is whether the plaintiff can recover for injuries sustained by him prior to his birth and while a viable fetus. The unborn child '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 * * *.' Allaire v. St. Luke's Hospital, 184 Ill. 359, 370, 56 N.E. 638, 641, 48 L.R.A. 225 (dissenting opinion of Boggs, J.).

'Viable . . . Capable of living; physically fitted to live; of a fetus, having reached such a stage of development as to permit continued existence, under normal conditions, outside of the womb.' New Century Dictionary. 'A viable foetus has been defined as one sufficiently developed for extra-uterine survival, normally a foetus of seven months or older.' Amann v. Faidy, 415 Ill. 422, 431, 114 N.E.2d 412, 417.

Courts in a majority of jurisdictions deny a recovery without regard to whether or not the fetus was viable, following the Massachusetts case of Dietrich v. Inhabitants of Northampton, 1884, 138 Mass. 14, 52 Am.Rep. 242. The principal reasons advanced in support of the rule favoring a denial of recovery are as follows: (1) Lack of precedent in that no case had permitted recovery. Dietrich v. Inhabitants of Northampton, supra; Allaire v St. Luke's Hospital, supra, 1900. (2) Stare decisis. Smith v. Luckhardt, 1939, 299 Ill.App. 100, 19 N.E.2d 446; Newman v. Detroit, 1937, 281 Mich. 60, 274 N.W. 710. (3) Whether a prenatal injury was the cause of the death or the condition of the child would be based upon mere conjecture or speculation. Stanford v. St. Louis-San Francisco Ry. Co., 1926, 214 Ala. 611, 108 So. 566; Magnolia Coca Cola Bottling Co. v. Jordan, 1935, 124 Tex. 347, 78 S.W.2d 944, 97 A.L.R. 1513. (4) The unborn child is a part of its mother; hence no debt is owing to it. Drobner v. Peters, 1921, 232 N.Y. 220, 133 N.E. 567, 20 A.L.R. 1503; Lipps v. Milwaukee Electric Ry. & Light Co., 1916, 164 Wis. 272, 159 N.W. 916, L.R.A.1917B, 334. (5) If the action could be maintained, an infant may maintain an action against its own mother for injuries occasioned by the negligence of the mother while pregnant with it. Allaire v. St. Luke's Hospital, supra. (6) Permitting recovery might give rise to fictitious claims. Magnolia Coca Cola Bottling Co. v. Jordan, supra. (7) If such a right is to be created, it should be by legislative action rather than judicial decision. Squillo v. New Haven, 1947, 14 Conn.Sup. 500; Marden v. Enterprise Industries, Inc., Superior Court, Hartford County, No. 90013 (1951).

Arguments generally advanced in favor of allowing recovery, at least where the alleged injuries occurred when the child was viable, summarized briefly are as follows: (1) An unborn viable child is capable of independent existence, hence, should be regarded as a separate entity. Bonbrest v. Kotz, D.C.1946, 65 F.Supp. 138; Williams v. Marion Rapid Transit, Inc., 1949, 152 Ohio St. 114, 87 N.E.2d 334, 10 A.L.R.2d 1051. (2) If the law recognizes an unborn child sufficiently to protect its property rights and rights of inheritance, and protects it against the crimes of others, it should recognize its separate existence for the purpose of redressing torts. Bonbrest v. Kotz, supra; Williams v. Marion Rapid Transit, Inc., supra. (3) If no right of action is allowed, there is a wrong inflicted for which there is no remedy. Bonbrest v. Kotz, supra; Montreal Tramways Co. v. Leveille, [1933] Can.Sup.Ct. 456. (4) Natural justice. Bonbrest v. Kotz, supra, the United States District Court for supra. (5) Absence of precedent is no ground for denying a recovery where a wrong has been committed. Bonbrest v. Kotz, supra.

In Woods v. Lancet, 1951, 303 N.Y. 349, 102 N.E.2d 691, 27 A.L.R.2d 1250, an infant who had suffered prenatal injuries during the ninth month of his mother's pregnancy was held to have a cause of action in negligence against the alleged wrongdoer. This case expressly overruled the earlier New York case of Drobner v. Peters, 1921, 232 N.Y. 220, 133 N.E. 567, 20 A.L.R. 1503. The holding is confined to prepartum injuries to a viable fetus. In Bonbrest v. Kotz, supra, the United States District Court for the District of Columbia held that a child which was injured in the process of removal from its mother's womb by the defendant's alleged professional malpractice and which demonstrated its capacity to survive at the time of the injury, was a 'viable child' and a person having standing in court to maintain action for its injury. In Williams v. Marion Rapid Transit, Inc., supra, it was held that an infant who is an existing viable child en ventre sa mere at time of injury may recover for personal injuries after her birth. In Lipps v. Milwaukee Electric Ry. & Light Co., 1916, 164 Wis. 272, 159 N.W. 916, L.R.A.1917B, 334, the court denied recovery where it appeared that injury had occurred to the child at a time before it 'could have been born viable.' But it is noteworthy that the court stated, 164 Wis. at page 276, 159 N.W. at page 917: 'We go no further than the facts of the case require, and hold that no cause of action accrues to an infant en ventre sa mere for injuries received before it could be born viable. Very cogent reasons may be urged for a contrary rule where the infant is viable * * *. As to such cases we express no opinion.'

In Jasinsky v. Potts, 1950, 153 Ohio St. 529, 92 N.E.2d 809, it was held that under the wrongful death statute an administrator of the estate of a child who, while viable, suffered a prenatal injury through the alleged negligent act of the defendant, and who died about three months after birth as a result of the injury, had a cause of action against the defendant for damages. In Damasiewicz v. Gorsuch, 1951, 197 Md. 417, 79 A.2d 550 it was held that a child in an automobile accident while en ventre sa mere, and who was prematurely born permanently blind in both eyes because of the accident, was entitled to recover in a negligence action. It does not appear whether the fetus was viable at the time of injury, although Henderson, J., in a concurring opinion, urges that the rule should not be applicable unless the fetus is viable. The majority opinion holds, 197 Md. at page 441, 79 A.2d at page 561, that 'as soon as [the fetus] becomes alive it has rights which it can exercise. When it becomes alive is a medical question to be determined in each case according to the facts.'

In Tucker v. Howard L. Carmichael & Sons, Inc., 1951, 208 Ga. 201, 65 S.E.2d 909, where a mother was en route to a hospital for child delivery in an ambulance operated by the defendant, and her unborn child...

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  • State Of Conn. v. Courchesne, No. 17174.
    • United States
    • Connecticut Supreme Court
    • June 15, 2010
    ...Simon v. Mullin, 34 Conn.Supp. 139, 147, 380 A.2d 1353 (1977) (any fetus regardless of viability); Tursi v. New England Windsor Co., 19 Conn.Supp. 242, 248, 111 A.2d 14 (1955) (viable fetus); and that a viable fetus that is injured in utero but dies before being born is not a person within ......
  • Toth v. Goree
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    • Court of Appeal of Michigan — District of US
    • October 28, 1975
    ...Or. 690, 291 P.2d 225 (1955); Damasiewicz v. Gorsuch, 197 Md. 147, 79 A.2d 550 (1951) (concurring opinion); Tursi v. New England Windsor Co., 19 Conn.Sup. 242, 111 A.2d 14 (1955); Keyes v. Construction Service, Inc., 340 Mass. 633, 165 N.E.2d 912 (1960). It was not long, however, before a m......
  • State, Use of Odham v. Sherman
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    • March 12, 1964
    ...(Emphasis supplied.) 'Other cases which allowed recovery for prenatal injuries by an infant born alive were Tursi v. New England Windsor Co., 19 Conn.Sup. 242, 111 A.2d 14 (1955); Mallison v. Pomeroy, 205 Ore. 690, 291 P. 2d 225 (1955); Worgan v. Greggo (Del.) [11 Terry 258, 50 Del. 258], 1......
  • State v. Courchesne, (SC 17174) (Conn. 6/15/2010)
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    • Connecticut Supreme Court
    • June 15, 2010
    ...Simon v. Mullin, 34 Conn. Sup. 139, 147, 380 A.2d 1353 (1977) (any fetus regardless of viability); Tursi v. New England Windsor Co., 19 Conn. Sup. 242, 248, 111 A.2d 14 (1955) (viable fetus); and that a viable fetus that is injured in utero but dies before being born is not a person within ......
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