Cooper v. Blanck

• Decision Date: 10 December 1923
• Docket Number: 9329.
• Citation: 39 So.2d 352
• Court: Court of Appeal of Louisiana — District of US
• Parties: COOPER et al. v. BLANCK.

39 So.2d 352

COOPER et al. v. BLANCK.

No. 9329.

Court of Appeal of Louisiana, Orleans.

December 10, 1923

Dec. 10 1923. ^[*]

Syllabus by the Court.

A foetus en ventre sa mere in the ninth month of gestation is a child in contemplation of law and within the meaning of Article 2315 R.C.C., which confers upon parents a right of action for the loss of a child by the negligent act of another.

A prenatal injury of a foetus in the ninth month of gestation which results in the death of the child three days after its birth gives the child a right of action against one whose negligence caused the injury which survives to its parents under Article 2315, R.C.C.

The exercise of judicial discretion in the estimation of damages due to deprivation of parentage, presents less difficulty than is involved in appraising the value of mental anguish, the loss of intellectual or aesthetic enjoyment or other forms of moral injury which our Courts are constantly called upon to assess.

The fact that a child dies three days after its birth from injuries received prenatally, does not justify the conclusion that it was incapable of suffering.

WESTERFIELD Judge.

This is an action ex delicto under Article 2315, Revised Civil Code. The plaintiffs, Mr. and Mrs. Cooper, allege that they were tenants of the defendant under a written lease, occupying the premises No. 1642 Elysian Fields Street, in this City belonging to the defendant; that during the term of their lease Mrs. Cooper while lying in bed in the leased premises was injured by falling plaster from the ceiling of the bed room, striking her in the abdomen causing her to suffer great pain and anguish and causing the premature birth of a child with which Mrs. Cooper was then pregnant some eight months. The child lived several days and it is alleged died as a result of the prenatal injuries inflicted upon it by the falling plaster. Mrs. Cooper sues for damages in the sum of $5,000 as compensation for the pain and suffering she experienced and Mr. and Mrs. Cooper sue (a) 'for the suffering endured by their said child previous to its death' and (b) 'for the mental anguish, suffering and pain caused to them by the death of their child' in the sum of $10,000.

An exception of no cause of action was filed by defendant and prior to the hearing of the exception plaintiffs filed a supplemental petition, in which the claim asserted on the part of the husband and wife jointly is further elaborated by the following allegation 'that at the time Mrs. Cooper was injured she had been pregnant for eight months; that the falling of the plastering on her stomach caused the subsequent death of her said child; and that she and her husband suffered as damages through the loss of said child, the companionship, support, love and affection which they had the right to expect from said child.'

Upon the trial of the exceptions the judge a quo held that there was a cause of action as to the claim of the mother for injuries sustained by her and overruled the exception to this extent, but that as to the claim of the father and mother jointly, there was no cause of action and maintained the exception to that extent.

From this ruling of the Court the plaintiffs have appealed and there is therefore before us for consideration the question of the right of the father and mother to recover under Article 2315 of the Revised Civil Code for (a) the suffering caused their deceased child as having survived to them and (b) for the death of their said child as having been conferred upon them directly under the terms of the Article.

It is to be observed that Article 2315, Revised Civil Code confers upon parents two distinct causes of action for the death of their children. They may sue for the suffering experienced by the child or in other words such action as the child itself might have brought had it survived the injuries which caused its death, and they may sue for the loss of the companionship, affection, support and comfort and other joys and satisfaction incident to parentage of which they have been deprived. The latter cause of action was conferred upon them by an amendment of the codal provision in 1884, as strangely enough the law previously had refused to put a value upon human life.

Justice Manning in the case of Van Amburg v. Railroad Company, 37 La.Ann. 650, 651, 55 Am.Rep. 517, in referring to the Act of 1884, observed: 'The second item of damage cannot be considered. Legislation and jurisprudence have combined to perpetuate the extraordinary doctrine that the life of a free man cannot be made the subject of valuation, and under the domination of that dogmatic utterance, made earlier than the Roman Digest, reproduced therein, and echoed by the courts of all countries from then till now, the singular spectacle has been witnessed of courts sanctioning damages for short-lived pains and refusing them for a long-life sorrow and the pecuniary losses consequent upon the death of one from whom was derived support, comfort and even the necessary stays of life. Legislation has at last come to the relief of future sufferers. The act of 1884 applies the remedy that the public conscience has long remanded, but it has missed application to this case only by a few days.'

So far as the present case is concerned the two causes of action are closely related, perhaps inseparably so, and we will discuss them together.

If the child had been injured subsequent to its birth, no matter how soon thereafter, and had died from the effects of such injury, no matter how short its span of life, there could be no doubt that its parents could have maintained an action against the party responsible for its injury, and in view of the writer of this opinion, at least such action might be based upon the damages done the child, the right of action for which survived to the parents, as well as the damages to themselves as parents because of the death of their child.

The question for consideration here is therefore whether the fact that the injury was inflicted prenatally alters the situation. In other words, when, in contemplation of law, does life begin. Is it at the time of conception of the mother, as an ovum or at a more advanced state of pregnancy, as an embryo, or when nearing the final stage of pregnancy as a foetus or only when physically separated from the mother by birth.

Considered from a physiological standpoint the stage of pregnancy at which the foetus may be said to be viable, has not been definitely established.

In Wharton & Stille's Medical Jurisprudence, Vol. 3, at page 35, Chapter 63, we find the following: 'As to the early limit of pregnancy, we have again two points to consider: The first, as to what is meant by being born alive, and the second, as to viability. To the medical man the fetus still unborn is alive, so that an abortion at any period might produce a live fetus. From a legal point of view, if we take voluntary or reflex independent motion as a criterion of life, there is nothing much more definite to guide us.'

The Author then quotes from Berthod: Wharton & Stille's Medical Jurisprudence, Vol. 3, at page 35.

"Dans certains cas les embryons Ou Les foetus expulses par avortement donnet des signes evident de vie et si par hazard l'oeuf est reste intact, on les voit s'agiter dans le liquide amniotique; nous avons meme recueillis une observation de ce genre dans un cas de grossesse gemellaire. Les foetus de quatre mois restent quelquefois plus d'une demiheure sans respirer; on peut alors suivre facilement les battements du coeur et ceux-ci se ralentissent des que le foetus se refroidit, ils s'accelerent quand on le rechauffe. Aussi lorsque ces foetus sont menaces d'une mort imminent par suite de refroidissement qui les envahit, on peut les ranimer et prolonguer leur vie en les plongeant dans un tasse d'eau a la temperature de 37-40 C., ainsi que nous avons en plusieurs fois l'occasion de le faire.

"Au cinquieme mois les enfants respirent, mais d'une facon si incomplete qu'ils ne tardent pas a succomber. A la fin du sixieme mois la respiration s'etablit et les enfants peuvent vivre pendant plusieurs heurs et meme plusieurs jours."

From the same authority we give the following interesting account of a child prematurely born as a result of the mother's miscarriage 144 days after conception, or less than five calendar months. "It breathed with a kind of convulsive gasp at intervals of one or two minutes. The heart beat regularly for forty-five minutes. The child repeatedly opened its mouth, and thrust forward its tongue.' It measured (it was a female) ten inches in length, and weighed fourteen ounces. The integuments were, for the most part, firm, and of a light color; the portion covering the abdomen was thin and of a reddish hue. The hair of the head was like down, the rudiments of the nails were plainly discernible, and the iris was entirely closed with the membrana pupillaris. The head was tolerably firm, but the frontal and the parietal bones were imperfect and widely separated. Dating from the first intercourse after the previous miscarriage, the age of the child was 144 days, or less than five calendar months.' (Wharton & Stille's Medical Jurisprudence, Vol. 3, at page 36.)

While the earliest period at which a foetus may be said to be viable, is still a matter of considerable doubt, the medical authorities expressing the opinion that the controlling factor is the weight of the embryo, the fact that the foetus is in an advanced stage of pregnancy, viable and in fact possessed of prenatal life is indisputable.

'That infants born one or two months before term have been reared to adult life is doubted by no one. And with the introduction of artificial feeding and warmth, the age of viability has been...