Damasiewicz v. Gorsuch

Citation79 A.2d 550,197 Md. 417
Decision Date16 March 1951
Docket NumberNo. 116,116
PartiesDAMASIEWICZ et al. v. GORSUCH et al.
CourtCourt of Appeals of Maryland

Marion A. Figinski, Baltimore, for appellants.

J. Gilbert Prendergast, Baltimore (Clark, Thomsen & Smith, Baltimore, on the brief), for Millard W. Hammond.

Theodore Sherbow, Baltimore (James J. Lindsay, Baltimore, on the brief), for D. T. Gorsuch.

Before MARBURY, Chief Judge, and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

MARBURY, Chief Justice.

The question in this case is whether a child, suffering prenatal injuries inflicted through the negligence of others, can bring a suit against such others for its damages. Appellant here, an infant, by his father and next friend, alleged in his declaration that his mother was riding in an automobile operated by one of the defendants, and that this automobile was struck by another, operated by the other defendant. As a result, the appellant, then en ventre sa mere, was prematurely born and is now suffering with permanent injuries causing him to lose the sight of both of his eyes. He claims the drivers of both automobiles caused his injuries by their negligence, and asks for damages against them. Demurrers were filed by both defendants. These demurrers were sustained by the trial court, without leave to amend, and judgment was entered in favor of both defendants for costs. From this judgment the plaintiff appeals.

In the Seventh Part of the Reports of Sir Edward Coke, published in 1738, there is contained at folio 7 the Earl of Bedford's case, Michaelmas Term (1586), 28 and 29 Elizabeth. The Earl had died, leaving two granddaughters, both of whom were under age, and the questions involved were very technical matters involving the right of the King to void certain leases of the Earl's land during the time the granddaughters were in ward. In the course of the report and discussion of the case, Lord Coke made many illustrative statements, one of which was: '* * * if Tenant in Tail makes a Lease for 30 or 40 Years, rendering Rent, which is avoidable by the Issue in Tail, and afterwards Tenant in Tail dies without Issue, his Wife with Child with a Son, by which the Donor enters, and as to him avoids the Lease, and afterwards the Son is born, the Lessee re-enters, the Son at his full Age may by Acceptance of the Rent affirm the Lease'. Then follows: 'And altho' filius in utero matris, est pars vicerum matris, (vide 3 Ass. pl. 2, 22 Ass. pl. 94. 22 Edwardi tertii, Corone 180. Stamford 21.) yet the Law in many Cases hath Consideration of him in Respect to the apparent Expectat, of his Birth.' This seems to have been the earliest statement on the subject found in the English reports.

In Blackstone's Commentaries (1765), Book 1, Chapter 1, pp. 129, 130, is found the following:

'Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother's womb. For if a woman is quick with child, and by a potion or otherwise, killeth it in her womb; or if anyone beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter. But the modern law doth not look upon this offence in quite so atrocious a light, but merely as a heinous misdemeanor.

'An infant in ventre sa mere, or in the mother's womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate, made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. And in this point the civil law agrees with ours.'

In the case of Wallis v. Hodson, reported in 2 Atkyn's Chancery Reports 114, an infant sued for the estate of her grandfather. He died in 1724 leaving an only son who died within a week after his father, leaving a widow. The plaintiff, who was the daughter of the son, was unborn at that time, but was born about five months later. Lord Hardwicke said:

'The principal reason I go upon in the question is, that the plaintiff was in ventre sa mere at the time of her brother's death, and consequently a person in rerum natura, so that both by the rules of the common and civil law, she was, to all intents and purposes, a child, as much as if born in the father's lifetime.

'First, As to the common law, there is the trite case of an infant in ventre sa mere being vouched in a common recovery; a mother also may justify the detaining of charters on behalf of it; a devise to him is good, by the opinion of Treby and Powell, in Scatterwood and Edge, 1 Salk. 229, a bill may be brought in his behalf, and this court will grant an injunction in his favour to stay waste, 2 Vern. 710. Musgrave versus Parry et al'. * * * 'Secondly, As to the civil law, nothing is more clear, than that this law considered a child in the mother's womb absolutely born, to all intents and purposes, for the child's benefit.

* * *

* * *

'The last passage in the Digest is more explicit than any other; but then it makes a difference between a child in ventre sa mere in esse at the father's death, and only conceived, the latter is not considered as having any relation to the intestate, being, according to a term made use of there, not animax.'

In the case of Thellusson v. Woodford (1798-1799) 4 Vesey, Jr., 227, there are pages of discussion by counsel and the justices of the rights of an unborn child to take under a will. Justice Buller said:

'The next objection is, that, supposing, he meant a child en ventre sa mere, and had expressly said so, yet the limitation is void. Such a child has been considered as a nonentity. Let us see, what this non-entity can do. He may be vouched in a recovery, though it is for the purpose of making him answer over in value. He may be an executor. He may take under the Statute of Distributions. He may take by devise. He may be entitled under a charge for raising portions. He may have an injunction; and he may have a guardian. Some other cases put this beyond all doubt. * * *

'In Doe v. Clarke, the words 'that whereever such consideration would be for his benefit, a child en ventre sa mere shall be considered as absolutely born' were used by me, because I found them in the Book, from whence the passage was taken. But there is no reason for so confining the rule. Why should not children en ventre sa mere be considered generally as in existence? They are entitled to all the privileges of other persons.' Then, after discussion of the earlier cases, he said: 'The Court have gone farther. They have held, that a child en ventre sa mere is to be considered as in being. It is immaterial, therefore, whether he is born, or not.'

Other cases which decided that an unborn child may inherit are Doe dem. Clarke v. Clarke (1795), 2 Blackstone 399, and Trower v. Butts (1823), I Simons & Stuart 181.

In the case of The George and Richard, L.R. III, Admiralty and Ecclesiastical 466, decided in 1871, an unborn child was held entitled to share in the damage caused by a collision between two ships, and its proctor had a right to a claim, although, until the child was born, a reference could not be made. Sir Robert Phillimore, who delivered the opinion, in discussing the matter, said: 'It has been argued, that the peculiar language of Lord Campbell's Act requires the actual existence of the claimant as a condition precedent to a right of action. I am not of this opinion. Although, as has been said, twenty-five years have passed since Lord Campbell's Act, and this particular question has not arisen for decision, it seems to have been considered in one case as within the purview of this statute.' The case cited was Blake v. Midland Railway Co., 18 Q.B. 93, 109.

The admiralty case, and the cases involving the construction of wills and the rights of inheritance are largely based upon the civil law which was administered in the Ecclesiastical courts. Lord Hardwicke's statement in Wallis v. Hodson, supra, covers both the civil and common law; but that was a case under the Statute of Distributions. The history of that statute shows that its main object was to make the jurisdiction of the Ecclesiastical courts more extensive than was allowed by the common law. Villar v. Gilbey, L.R. (1907) A.C. 139, 149.

There does not seem to have been any case either in England or in America which passed upon the right of an unborn child to recover damages for a tort until the case of Dietrich v. Inhabitants of Northampton, 138 Mass. 14, decided in 1884. The opinion in that case was written by Justice Oliver Wendell Holmes, then sitting on the Supreme Judicial Court of Massachusetts. The case was a suit by the administrator of a child, which was born prematurely as a result of the fall of its mother on a highway of the town of Northampton. The child was not directly injured, but the shock to its mother caused the premature birth and it was unable to survive, although it lived for ten or fifteen minutes after birth. Suit was brought under a statute imposing liability on the township. Justice Holmes cited the rule of criminal liability laid down by Lord Coke, although he expressed some doubt that this represented the common law, and then said: 'For, even if Lord Coke's statement were the law of this Commonwealth, the question would remain whether the analogy could be relied on for determining the rule of civil liability. Some ancient books seem to have allowed the mother an appeal for the loss of her child by a trespass upon her person. Abbrev.Plac. 26, col. 2 (2 Joh.) Lincoln rot. 3. Fleta, I. c. 35, § 3, and Sir Samuel Clarke's note, citing 45 H. III, rot. 22. Which again others denied. 1 Britton, (Nichols's ed.) 114. See Abbrev.Plac. 295, col. 2 (29 Ed. I.) Norht. rot. 43. Kelham's Britton, 152, n. 14.' Then,...

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