Allaire v. St. Luke's Hosp.
Citation | 56 N.E. 638,184 Ill. 359 |
Parties | ALLAIRE v. ST. LUKE'S HOSPITAL et al. |
Decision Date | 19 February 1900 |
Court | Supreme Court of Illinois |
OPINION TEXT STARTS HERE
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: 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.
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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... ... 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 ... ...
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...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......
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... ... '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 ... ...
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... ... '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 ... 422], 114 N.E.2d , 413 (1953), Illinois joined the procession by overruling Allaire v. St. Lukes Hospital, supra, and allowed recovery by the administratrix of the estate of a viable child, who ... ...
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Equal Protection and the Unborn Child: A Dobbs Brief.
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