Magnolia Coca Cola Bottling Co. v. Jordan

• Decision Date: 23 January 1935
• Docket Number: No. 1506-6258.,1506-6258.
• Citation: 78 S.W.2d 944
• Parties: MAGNOLIA COCA COLA BOTTLING CO. v. JORDAN et ux.
• Court: Texas Supreme Court

Page 944

78 S.W.2d 944

MAGNOLIA COCA COLA BOTTLING CO. v. JORDAN et ux.

No. 1506-6258.

Commission of Appeals of Texas, Section B.

January 23, 1935.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by H. P. Jordan and wife against the Magnolia Coca Cola Bottling Company. Judgment for plaintiff was reformed, and affirmed as reformed, by the Court of Civil Appeals [47 S.W.(2d) 901], and defendant brings error.

Judgment of the Court of Civil Appeals affirmed in part, and reversed in part, and judgment of the trial court affirmed.

Brown & Brooke, of El Paso, for plaintiff in error.

Lea, McGrady & Edwards, of El Paso, for defendants in error.

SMEDLEY, Commissioner.

Defendants in error, Jordan and wife, sued plaintiff in error for damages resulting from negligence of an employee of plaintiff in error in the operation of its truck. They alleged that the truck struck the automobile driven by Mrs. Jordan and caused it to collide with another automobile parked at the curb; that Mrs. Jordan, who was then pregnant, was crushed against the steering wheel and other parts of the automobile and her abdomen and back badly bruised; and that she was caused thereby to give premature birth to twin babies, one of which was born bruised and, after living 19 days, died as a result of the injuries suffered by it from the negligence of the driver of the truck. Defendants in error sued for damages both for personal injuries suffered by Mrs. Jordan and for loss of the services of the child.

After trial and verdict, judgment was rendered in favor of defendants in error for $5,000 as compensation for the personal injuries suffered by Mrs. Jordan. Although the jury found that the unborn child suffered physical injuries as a result of the collision, that it died as the proximate result of the injuries so received, and that defendants in error suffered pecuniary damages to the amount of $1,250 in the death of the child, the trial court refused to render judgment for such damages, on the ground, as stated in the judgment that "the law gives to parents no cause of action for the loss of a child which dies as a proximate result of injuries while it is still quick in the womb of its mother, even though such injuries be inflicted by the negligence of the defendant."

The Court of Civil Appeals affirmed the judgment of the trial court for $5,000 on account of the personal injuries suffered by Mrs. Jordan, and also rendered judgment in favor of defendants in error for the additional sum of $1,250, with interest, on account of the death of the child. 47 S.W.(2d) 901.

Plaintiff in error presents but four assignments of error. One of these complains of the action of the Court of Civil Appeals in rendering judgment for the additional sum as compensation for the death of the child, while the other three assignments question the correctness of the manner in which the trial court submitted to the jury the issue of unavoidable accident, and defined, or failed to define, certain terms in connection with such issue.

The question whether damages may be recovered for the death of a child resulting from prenatal injuries has not heretofore been determined in this state. Since at common law there is no right to recover damages for death, "the right must be found in the statute itself fairly construed." Farmers' & Mechanics' National Bank v. Hanks, 104 Tex. 320, 325, 137 S. W. 1120, 1123, Ann. Cas. 1914B, 368. The Texas statute permitting actions to be brought for damages on account of injury causing death, and which has been in effect for many years, with amendment from time to time, is title 77, articles 4671-4678, Revised Civil Statutes of 1925. Article 4671 provides in substance that an action for actual damages on account of injury causing the death of any person may be brought when the injury is caused by the wrongful act, neglect, or default of another person, corporation, etc. Article 4672 is as follows: "The wrongful act, negligence, carelessness, unskilfulness or default mentioned in the preceding article must be of such character as would, if death had not ensued, have entitled the party injured to maintain an action for such injury."

This article has not been construed literally as having reference only to the character of the wrongful or negligent act, but it has been construed and applied as meaning that the right of action given by the preceding article exists only in cases wherein the injured person could himself have maintained an action for damages had he lived.

In Wilson v. Brown (Tex. Civ. App.) 154 S. W. 322, 326 (application for writ of error refused), the contention was made that the words "of such character" used in the statute should be construed as descriptive of the act or acts of the defendant in and of themselves and separate and apart from the surrounding circumstances. The court, in holding that such construction was not sound, said: "The authorities show that the reasonable and sound construction to be placed upon that article is that it was the intention of the Legislature to declare that, unless the deceased could, at the time of his death, have maintained an action for the injury, such right of action should not exist in favor of the beneficiaries mentioned in the statute."

See, also, Thompson v. F. W. & R. G. Ry. Co., 97 Tex. 590, 80 S. W. 990, 1 Ann. Cas. 231; Sullivan-Sanford Lumber Co. v. Watson, 106 Tex. 4, 155 S. W. 179.

In this case, therefore, no action can be maintained by defendants in error for damages on account of the death of the child unless the child, had it lived, could have maintained an action against plaintiff in error for the injury inflicted upon it before its birth. The question whether such right of action exists must be determined either by the application of sound rules or principles of the common law, or from adjudicated cases illustrating such rules or principles. Without deciding the question, Judge Lamm, in Kirk v. Middlebrook, 201 Mo. 245, 285, 100 S. W. 450, 461, speaks of it as "a most formidable, a most novel, and anxious question."

We have found no decision (and the parties have cited none) by an appellate court of final jurisdiction holding that damages for prenatal injury may be recovered either by the injured child if it is born and lives or by its beneficiaries in the event of its death from such injury. "The cases are agreed that in the absence of statute a prenatal injury affords no basis for an action in damages, in favor either of the child or its personal representative." Note, 20 A. L. R. 1505 and following. See, also, 14 R. C. L. p. 218, § 5.

Vigorous arguments in favor of the existence of such right of action are found in two dissenting opinions, in two opinions by the Appellate Division of the Supreme Court of New York, and in several articles in law journals. See dissenting opinion of Justice Boggs in Allaire v. St. Luke's Hospital, 184 Ill. 359, 56 N. E. 638, 48 L. R. A. 225, 75 Am. St. Rep. 176; dissenting opinion of Justice Windes in Allaire v. St. Luke's Hospital, 76 Ill. App. 441; Drobner v. Peters, 194 App. Div. 696, 186 N. Y. S. 278; Nugent v. Brooklyn Heights R. Co., 154 App. Div. 667, 139 N. Y. S. 367; 58 Central Law Journal 143; 61 Central Law Journal, 364; 12 St. Louis Law Review, 85.

The Supreme Court of Massachusetts, in Dietrich v. Northampton, 138 Mass. 14, 52 Am. Rep. 242, held that a mother could not maintain an action for damages on account of the death of her prematurely born child. The mother, when she was between four and five months advanced in pregnancy, slipped upon a defect in a highway of the defendant town. The fall caused a miscarriage, and the child was too little advanced to survive its premature birth, although there was some evidence indicating that it lived ten or fifteen minutes. Justice Oliver Wendell Holmes, in writing the opinion, said: "No case, so far as we know, has ever decided that, if the infant survived, it could maintain an action for injuries received by it while in its mother's womb." He expressed doubt whether "a man might owe a civil duty and incur a conditional prospective liability in tort to one not yet in being," and he found no useful analogy in Lord Coke's statement of a rule of the law in England "to the effect that if a woman is quick with child, and takes a potion, or if a man beats her, and the child is born alive and dies of the potion or battery, this is murder." The decision is based primarily upon the conclusion that the unborn child was a part of the mother at the time of the injury.

In Walker v. Great Northern Ry. Co. of Ireland, 28 L. R. Ir. 69, the four justices who heard the case wrote elaborate opinions holding that demurrer should be sustained to the statement of plaintiff's claim. The case is thus tersely stated in one of the opinions: "A woman who is with child is in a railway accident, and the infant when born is found to be deformed. Can the infant maintain an action against the company for negligence?"

Two of the justices decided the case upon the single ground that the contract of the carrier was made with plaintiff's mother, with no averment that the defendant knew of the pregnancy of the mother, and that the carrier therefore owed no duty to the plaintiff for the breach of which an action would lie. The other two justices based the decision upon the additional ground, as stated by Justice Johnson, that, "when the act of negligence occurred, the plaintiff was not in esse, was not a person, or a passenger, or a human being. Her age and existence are reckoned from her birth." He further said: "We have not been referred to any principle to show that a legal duty has ever been held to arise towards that which is not in esse in fact and has only a fictitious existence in law, so as to render a negligent act a breach of that duty." Justice O'Brien, being impressed with the novelty of the case, and not seeing any injustice "in the abstract of such an action...