Lipps v. Milwaukee Elec. Ry. & Light Co.

Decision Date14 November 1916
Citation164 Wis. 272,159 N.W. 916
CourtWisconsin Supreme Court
PartiesLIPPS v. MILWAUKEE ELECTRIC RY. & LIGHT CO.

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Milwaukee County; John J. Gregory, Judge.

Action by Hilda Lipps, by guardian, against the Milwaukee Electric Railway & Light Company. From a judgment sustaining a demurrer to the complaint, and dismissing the action, plaintiff appeals. Affirmed.

Action, by guardian ad litem, to recover damages for personal injuries sustained on defendant's car by plaintiff on September 5, 1912, while a fetus en ventre sa mere of the age of about five months and before she could have been born viable. Plaintiff's father and mother settled with the defendant for the damage sustained by them. In due course of time plaintiff was born, and it is alleged that she suffers from epileptic fits as a direct result of the prenatal injuries received. Defendant demurred to the complaint on the ground that it failed to state facts sufficient to constitute a cause of action, and because it appeared on the face thereof that plaintiff had not the legal capacity to sue. The court sustained the demurrer and entered judgment dismissing the action, from which judgment the plaintiff appealed.Oscar Kroesing, of Milwaukee, for appellant.

Van Dyke, Shaw, Muskat & Van Dyke, of Milwaukee, for respondent.

VINJE, J. (after stating the facts as above).

But few cases of this kind are found in the reports, though there must have been many occasions for bringing them had it been generally considered by the legal profession that a cause of action accrues to a child for injuries received before birth. This paucity of cases, however, does not determine the right to maintain such an action, but it does indicate, no doubt, the general view relative thereto held by the legal profession. Our attention was called by counsel on both sides to but six cases involving the question under consideration. Independent search has failed to find others directly in point. The first case was that of Dietrich v. Northampton, 138 Mass. 14, 52 Am. Rep. 242 (decided in 1884), where as the result of a fall on a defective highway a woman between four and five months advanced in pregnancy was delivered of a child that lived only a few minutes after its birth. It was held that such a child was not a person for the loss of whose life an action may be maintained within the meaning of Pub. Stats. c. 52, § 17, which gives a right of action for negligently causing the death of a person. The court, through Holmes, J., says:

“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.”

The next case, that of Walker v. Great Northern Ry. Co., 28 L. R. (Ir.) 69, decided in 1890, was one where a woman quick with child was injured while a passenger on defendant's train in such a manner as to permanently wound and cripple plaintiff then en ventre. The opinions of the judges do not all agree as to whether or not an action for injuries to an unborn child may not, under any circumstances, be maintained, but they do all agree that since defendant's contract relations were with the mother alone, and not with the plaintiff, the latter has no cause of action. The case of Allaire v. St. Lukes Hospital, 184 Ill. 359, 56 N. E. 638, 48 L. R. A. 225, 75 Am. St. Rep. 176 (decided in 1900), presents the question in its broadest form. There plaintiff's mother, about ten days before she expected to be confined, went to the defendant for the express purpose of treatment and care during her accouchement. While in the hospital for such purpose she was negligently injured in an elevator therein in such a way that plaintiff, who was born four days later, was also severely injured. After reviewing Dietrich v. Northampton, 138 Mass. 14, 52 Am. Rep. 242, and Walker v. Great Northern Ry. Co., 28 L. R. (Ir.) 69, and in summing up the case the opinion of the appellate court, adopted by the Supreme Court as its opinion, proceeds:

“That a child before its birth is, in fact, a part of the mother, and is only severed from her at birth, cannot, we think, be successfully disputed. The doctrine of the civil law and the ecclesiastical and admiralty courts, therefore, that an unborn child may...

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  • State ex rel. Angela M.W. v. Kruzicki
    • United States
    • Wisconsin Supreme Court
    • 22 Abril 1997
    ...Although the jury returned a verdict in favor of the child, the circuit court struck the award based on Lipps v. Milwaukee Elec. Ry. & Light, Co., 164 Wis. 272, 159 N.W. 916 (1916). 4 The Puhl court affirmed the circuit court's decision on other grounds, finding that there was not sufficien......
  • Klutschkowski v. Peacehealth
    • United States
    • Oregon Supreme Court
    • 26 Septiembre 2013
    ...Rys. Co., 248 Mo. 126, 154 S.W. 71 (1913); Nugent v. Brooklyn Heights R.R., 154 A.D. 667, 139 N.Y.S. 367 (1913); Lipps v. Milwaukee Elec. Ry., 164 Wis. 272, 159 N.W. 916 (1916); Drobner v. Peters, 194 A.D. 696, 186 N.Y.S. 278 (1921). See generally David A. Gordon, The Unborn Plaintiff, 63 M......
  • Womack v. Buchhorn
    • United States
    • Michigan Supreme Court
    • 1 Junio 1971
    ...629; Buel v. United Railways Co., 248 Mo. 126, 154 S.W. 71, 45 L.R.A. (N.S.) 625, Ann.Cas. 1914C, 613; Lipps v. Milwaukee Electric Ry. & Light Co., 164 Wis. 272, 159 N.W. 916, L.R.A. 1917B, 334; Stanford v. St. Louis-San Francisco Railway Co., 214 Ala. 611, 108 So. 566; Nugent v. Brooklyn H......
  • Smith v. Brennan
    • United States
    • New Jersey Supreme Court
    • 11 Enero 1960
    ...Buel v. United Rys. Co. of St. Louis, 248 Mo. 126, 154 S.W. 71, 45 L.R.A.,N.S., 625 (Sup.Ct.1913); Lipps v. Milwaukee Electric Ry. & Light Co., 164 Wis. 272, 159 N.W. 916, L.R.A.1917B, 334 (Sup.Ct.1916); Drobner v. Peters, 232 N.Y. 220, 133 N.E. 567, 20 A.L.R. 1503 (Ct.App. Stanford v. St. ......
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