Allaire v. St. Luke's Hosp.

Decision Date19 February 1900
Citation56 N.E. 638,184 Ill. 359
CourtIllinois Supreme Court


Appeal from appellate court, First district.

Trespass on the case by Thomas Edwin Allaire, an infant, by Ada A. Allaire, his next friend, against St. Luke's Hospital and others. Judgment for defendants on demurrer, and plaintiff appeals. Affirmed in appellate court (76 Ill. App. 441), and plaintiff appeals to supreme court. Affirmed.

The amended declaration in this case, omitting the caption, is in the words and figures as follows: ‘The said plaintiff, Thomas Edwin Allaire, an infant of tender age, by Ada A. Allaire, his next friend, and Philetus Smith, his attorney, by leave of the court first had, for amended declaration complains of the said defendants, both bodies politic and corporate, and doing business at the city of Chicago, in said county, under and by virtue of the laws of said state, in a plea of trespass on the case, for that heretofore, to wit, on or about the second day of February A. D. 1896, at and in the said city, said defendants were possessed of and using a certain building there situate as a hospital for the care, curing, and treatment of sick persons, and of ladies therein during the time before, at, and after accouchement and parturition and of convalescence thereafter, and for the care, careful treatment, and medical diligence in the safe delivery of infants in ventre de sa mere, all for hire and reward in that behalf. The said Ada A. Allaire, then within ten days, as near as may be, for the natural birth of plaintiff, as the said defendants then and there well knew and had knowledge, then and there, on said lastnamed day, at the request and solicitation of the said defendants, for hire and reward in that behalf to be paid by her, became and was a patient of said defendants in the said building, therein to be carefully kept, cared for, housed, and medically treated until the birth of plaintiff, and during her convalescence thereafter, and for such hire and reward so to be paid then and there became and was such patient of defendants, for the use and benefit of plaintiff, in that he also should receive from said defendants all due care and treatment, and should be safely delivered by birth, in the course of nature, without personal harm. And thereupon it then and there became and was the duty of defendants to carefully and comfortably house, shelter, and keep the said Ada A. Allaire in said building, and to extend to and bestow upon her person great care and diligence before, during, and after plaintiff's birth,-all this for the well-being of the said Ada A. Allaire, as also for the benefit of the plaintiff, to the end and purpose that he also should receive great and due care from said defendants, and be naturally born of his mother, without injury or harm to his person. And the plaintiff further avers that before, on, and after the day first aforesaid, at and in the said building, the said defendants were possessed of and using a certain elevator, so called, for the conveyance of patients therein through a shaft from one floor of said building to other floors therein, and the said Ada A. Allaire, then being such patient, as aforesaid, on said day last named, and in obedience to defendants' request and direction so to do, entered into such elevator, and upon the floor thereof, and then and there sat down upon a common, all-wooden chair on said floor, that had there been placed in its then position by defendants, to be carried and elevated thereon from the second floor of said building to the floor of the obstetrical department thereof above said second floor, she then and there being assured by defendants that it was and would be perfectly safe for her to be seated in said chair in its then position, to be carried upward in said elevator, and that no harm could come to her for so doing; defendants then and there well knowing that said Ada A. Allaire was then and there near to confinement for the natural birth of plaintiff. And thereupon it became and was the duty of defendants to have and keep said elevator and shaft, and each and every part thereof, in a proper, safe, and secure condition, and keep the said mother of plaintiff and the plaintiff safely and without personal harm or injury in the use and enjoyment thereof, and to so place and condition the said mother therein and upon said floor and chair as that neither she nor the plaintiff, then in ventre de sa mere, should in any way be injured or personally harmed while therein, and being carried thereby to said floor above, whither the said mother was then and there directed by defendants; yet the defendants did not nor would regard their duty in that behalf, but, on the contrary thereof, negligently and carelessly, at the place and on the day last named, and when and while the said mother of plaintiff, with all due care on her part, was then and there so conditioned and seated in said chair, and being rapidly carried upward in said elevator, failed and neglected to have and keep said shaft, elevator, and chair in a safe and secure condition and position, and to have and keep the car of the said elevator inclosed, and then and there carelessly, negligently, and heedlessly failed to properly load and operate said elevator, and did then and there so carelessly and negligently operate the same that when and while the said Ada A. Allaire was so being rapidly carried upward therein and thereon the top of said chair suddenly and with great force struck a projection in and on the side of said shaft, whereby said chair, with said mother thereon sitting, was instantly and with great power crushed to the floor of said elevator car, the said car then and there being uninclosed and open, and said mother of plaintiff and the plaintiff then and there with great force and violence thrown and hurled from and off said chair to the floor of said car and to the edge of said floor opposite said chair, and by reason thereof and the swift upward motion of said elevator car the left limb of said mother was then and there and thereby thrown and caught between the edge of said floor and a projection in said shaft, and was then and thereby greatly cut, mangled, bruised, and the bones thereof broken, and said mother greatly and grievously bruised, hurt, jammed, and wounded in her left hip, thigh, side, and body, and other great personal injuries, by reason of said negligence of defendants, said Ada A. Allaire then and thereby received and sustained, and that said mother, by reason of her said personal injuries, and the manner, way, and time in which the same were so received and sustained, was then and there put in great terror and fear that death was then for herself and plaintiff unborn, so that and thereby, and as the direct, proximate, and natural cause of said injuries to his said mother, said plaintiff was then and there, and by reason of defendants' said negligence, greatly injured, strained, bruised, wounded in his left limb, left side, left hip, left arm, and left hand, so that at his birth, on the sixth day of February, A. D. 1886, his left foot, left limb, left side, and left hand were and became, and hitherto have been and still are, wasted, withered and atrophied, and his said foot smaller than natural by more than one-half, and made thereby to turn inward and the sole thereof upward, and his said limb shorter than natural by more than four inches, and his said hip, side, and arm, by reason of said negligence and injuries, became and are made shrunken, atrophied, and paralytic, and his said limb without flesh thereon, and from thence hitherto have so been and still are, and said plaintiff thereby greatly and sadly crippled for life; and in endeavoring to be cured and healed of his said injuries has laid out and expended the sum of two thousand dollars ($2,000) and more (the said Ada A. Allaire having heretofore, for a valuable consideration, settled with the said defendants for and relesed them from all damages for said injuries to herself alone); to the damage of plaintiff in the sum of fifty thousand dollars (50,000), and therefore he brings his suit,’ etc. The general demurrer was filed by the defendants, which was sustained by the court, and judgment was rendered for the defendants. An appeal was thereupon taken to the appellate court, where the judgment of the lower court has been affirmed. The present appeal is from such judgment of affirmance.

Boggs, J., dissenting.

Philetus Smith, for appellant.

Lynden Evans, for appellees.


In deciding this case the appellate court delivered the following opinion:

‘The action is not given by any statute, and, if maintainable, it must be so by the common law, and therefore the question is whether, at common law, the action can be maintained. Had the plaintiff, at the time of the alleged injury, in contemplation of the common law, such distinct and independent existence that he may maintain the action, or was he, in view of the common law, a part of his mother? If the former, it would seem the action can be maintained, but, if the latter, not; because, if a part of his mother, the injury was to her, and not to the plaintiff.

Appellant's counsel has argued the case learnedly, and with not a little industry, but has cited only two cases in which it was attempted to maintain actions involving the question presented here, namely, Dietrich v. Inhabitants of Northampton, 138 Mass. 14 (decided in 1884), and Walker v. Railway Co., 28 L. R. Ir. 69 (decided in 1891). In the former case the facts were that the mother, when advanced four or five months in pregnancy, slipped, and fell, by reason of a defect in the highway, the consequence of which was a miscarriage. The plaintiff was alive when delivered, but was too little advanced in foetal life to survive its premature birth. The action was brought by the administrator of the deceased infant under a statute authorizing an action...

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98 cases
  • Britt v. Sears
    • United States
    • Indiana Appellate Court
    • December 29, 1971 quoted with approval a part of the following words from the dissent by Mr. Justice Boggs in Allaire v. St. Luke's Hospital (1900), 184 Ill. 359, 370, 56 N.E. 638, 641, 48 L.R.A. 255 (in which the majority had denied a live-born child the right to maintain an action for pre-natal injuries......
  • Farley v. Sartin
    • United States
    • West Virginia Supreme Court
    • December 13, 1995
    ...for a tortiously injured unborn child neither went unnoticed nor avoided criticism. Justice Boggs' dissent in Allaire v. St. Luke's Hospital, 184 Ill. 359, 56 N.E. 638 (1900), 9 is credited with starting the movement to abolish the theory that a tortfeasor owes no duty to an unborn child be......
  • Toth v. Goree
    • United States
    • Court of Appeal of Michigan — District of US
    • October 28, 1975
    ...The Court stated, Supra, at 135, 188 N.W.2d at 786: 'The instructive dissent of Mr. Justice Boggs, in Allaire v. St. Luke's Hospital, 184 Ill. 359, at 368, 56 N.E. 638, at 640, was written in 1900. His view has been largely adopted in this 'The majority in that case held: "That a child befo......
  • State, Use of Odham v. Sherman
    • United States
    • Maryland Court of Appeals
    • March 12, 1964
    ...certainly does not fall within that category. 'A dissenting opinion by Justice Boggs in the case of Allaire v. St. Luke's Hospital, 184 Ill. 359 [56 N.E. 638, 48 L.R.A. 225] (1900), although it was at the time a lone voice crying in the wilderness, became many years later the rallying cry f......
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2 books & journal articles
  • Equal Protection and the Unborn Child: A Dobbs Brief.
    • United States
    • Harvard Journal of Law & Public Policy Vol. 45 No. 3, June 2022
    • June 22, 2022
    ...14, 17 (1884), a case now discredited and abandoned, see supra note 129, and cases following it such as Allaire v. St. Luke's Hospital, 184 Ill. 359, 367 (227.) See supra note 46; Commonwealth v. Wood, 77 Mass. (11 Gray) 85, 86 (Mass. 1858). (228.) At 27 n.4, the Brief of the United States ......
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    • Sage Political Research Quarterly No. 42-2, June 1989
    • June 1, 1989
    ...Pregnancy: A Review ofEffects on Growth and Development of Offspring." Human Biology 54:421-53.Allaire v. St. Luke’s Hospital (1920) 184 Ill. 359, 56 N.E. 638.American Law Institute. 1979. Restatement of the Law of Torts. 2nd ed.Vol. 4. St. Paul, MN: American Law Institute.Annas, G. 1986. "......

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