Daley v. Meier
Decision Date | 27 November 1961 |
Docket Number | Gen. No. 48442 |
Citation | 178 N.E.2d 691,33 Ill.App.2d 218 |
Parties | Russell M. DALEY, as Guardian of the Estate of Russell Michael Daley, Jr., Appellant, v. Christel MEIER, Appellee. |
Court | United States Appellate Court of Illinois |
Askow, Stevens & Hardy, Chicago, Irwin J. Askow, Richard James Stevens, Howell B. Hardy, Chicago, of counsel, for appellant.
Vogel & Vogel, Chicago, L. H. Vogel, John D. Dempsey, Dominic Rizzi, Chicago, of counsel, for appellee.
This is an action for prenatal injuries allegedly sustained by a minor child while in the womb of his mother, when she was approximately one month pregnant. The trial court sustained defendant's motion to strike the amended complaint and dismissed the suit. Plaintiff appeals.
The amended complaint alleges that on September 14, 1958, the child, Russell Michael Daley, Jr., while in the womb of his mother, was injured in an automobile collision, caused by defendant's negligence, and that he was born on May 16, 1959, with resulting subnormal mental faculties, has not developed normally, and will require medical care and special medical appliances throughout his life.
The defendant's motion to dismiss the amended complaint was based on the ground that, at the time of the alleged occurrence, plaintiff was not a viable fetus, capable of extra-uterine survival, and therefore had no identity apart from his mother.
In 1953, our Supreme Court in Amann v. Faidy, 415 Ill. 422, 114 N.E.2d 412, held that an administratix of the estate of a child, who suffered prenatal injuries when a viable fetus, had a right of action for wrongful death against the defendant whose negligence caused the injuries which resulted in the death of the child after he was born alive. In the same year, in Rodriquez v. Patti, 415 Ill. 496, 114 N.E.2d 721, the Supreme Court, in an action by a child, born alive, for injuries inflicted upon him 'while he was an infant en ventre sa mere,' stated, 'Our holding in Amann v. Faidy is decisive of the legal issues presented in this case,' and reversed the trial court's dismissal of the action. Our attention has not been called to any subsequent Illinois decisions on that subject.
Defendant contends that the reasoning and decision in Amann v. Faidy limits the right of action for prenatal injuries to children, born alive, who, at the time of the injury, were alive and capable of being delivered and of remaining alive separate from their mothers.
Therefore, the sole question is whether a child, who was born alive and survives, can maintain an action to recover for prenatal injuries resulting from the negligence of another, even though the child had not reached the state of a viable fetus at the time of the injury.
Since 1953, there have been a number of cases in other states which have considered at length the basis for distinguishing the rights of an embryo or fetus, nonviable at the time of the injury and later born alive, from those of a fetus viable when injured. In support of the contention that the viable distinction has no justification, plaintiff relies on Kelly v. Gregory (1953), 282 App.Div. 542, 125 N.Y.S.2d 696; Hornbuckle v. Plantation Pipe Line Co. (1956), 212 Ga. 504, 93 S.E.2d 727; Bennett v. Hymers (1958), 101 N.H. 483, 147 A.2d 108; Smith v. Brennan (1960), 31 N.J. 353, 157 A.2d 497; Sinkler v. Kneale (1960), 401 Pa. 267, 164 A.2d 93.
In New York, in 1953, the Appellate Division of the Supreme Court held (Kelly v. Gregory, 282 App.Div. 542, 125 N.Y.S.2d 696) that the legal entity of a child begins at conception and a child, born alive, may recover for prenatal injury tortiously inflicted at any time at or after conception, regardless of whether the fetus was viable at time of injury. At page 698 of 125 N.Y.S.2d, the court says:
'If the child born after an injury sustained at any period of his pre-natal life can prove the effect on him of the tort, as for the purpose of this appeal and on the face of the complaint before us we must assume plaintiff will be able to do, we hold he makes out a right to recover.'
In Georgia, in 1956, the Supreme Court held that a child, born after receiving tortious injury at any period after conception, had a cause of action for such injuries, regardless of whether they were sustained while he was an embryo or fetus. (Hornbuckle v. Plantation Pipe Line Co., 212 Ga. 504, 93 S.E.2d 727.) On page 728 of 93 S.E.2d, the court said:
In New Hampshire, in 1958, the Supreme Court held:
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