Damasiewicz v. Gorsuch
Citation | 79 A.2d 550,197 Md. 417 |
Decision Date | 16 March 1951 |
Docket Number | No. 116,116 |
Parties | DAMASIEWICZ et al. v. GORSUCH et al. |
Court | Court 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.
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, 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:
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.
. * * * '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:
* * *
Then, after discussion of the earlier cases, he said:
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: 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: Then,...
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