Dietrich v. Inhabitants of Northampton

Decision Date27 October 1884
Citation138 Mass. 14
PartiesPeter Dietrich, administrator, v. Inhabitants of Northampton
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Argued September 17, 1884.


Exceptions overruled.

D. Hill & J. A. Wainwright, for the plaintiff.

T. G Spaulding, for the defendant.

C. Allen & Colburn, JJ., absent. Holmes, J.


Holmes, J.

The mother of the deceased slipped upon a defect in a highway of the defendant town, fell, and has had a verdict for her damages. At the time, she was between four and five months advanced in pregnancy, the fall brought on a miscarriage, and the child, although not directly injured, unless by a communication of the shock to the mother, was too little advanced in foetal life to survive its premature birth. There was testimony, however, based upon observing motion in its limbs, that it did live for ten or fifteen minutes. Administration was taken out, and the administrator brought this action upon the Pub. Sts. c. 52, § 17, for the further benefit of the mother in part or in whole, as next of kin. The court below ruled that the action could not be maintained; and we are of opinion that the ruling was correct.

The plaintiff founds his argument mainly on a statement by Lord Coke, which seems to have been accepted as law in England, to the effect that if a woman is quick with child, and takes a potion, or if a man beats her, and the child is born alive and dies of the potion or battery, this is murder. 3 Inst. 50. 1 Hawk. P. C. c. 31, § 16. 1 Bl. Com. 129, 130. 4 Bl. Com. 198. Beale v. Beale, 1 P. Wms. 244, 246. Burdet v. Hopegood, 1 P. Wms. 486. Rex v. Senior, 1 Moody C. C. 346. Regina v. West, 2 C. & K. 784; S. C. 2 Cox C. C. 500. We shall not consider how far Lord Coke's authority should be followed in this Commonwealth, if the matter were left to the common law, beyond observing that it was opposed to the case in 3 Ass. pl. 2; S. C. Y. B. 1 Ed. III. 23, pl. 18; which seems not to have been doubted by Fitzherbert or Brooke, and which was afterwards cited as law by Lord Hale. Fitz. Abr., Enditement, pl. 4; Corone, pl. 146. Bro. Abr. Corone, pl. 68. 1 Hale P. C. 433.

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. But no case, so far as we know, has ever decided that, if the infant survived, it could maintain an action for injuries received by it while in its mother's womb. Yet that is the test of the principle relied on by the plaintiff, who can hardly avoid contending that a pretty large field of litigation has been left unexplored until the present moment.

If it should be argued that an action could be maintained in the case supposed, and that, on general principles, an injury transmitted from the actor to a person through his own organic substance, or through his mother, before he became a person, stands on the same footing as an injury transmitted to an existing person through other intervening substances outside him, the argument in this general form is not helped, but hindered, by the analogy drawn from Lord Coke's statement of the criminal law. For, apart from the question of remoteness, the argument would not be affected by the degree of maturity reached by the embryo at the moment of the organic lesion or wrongful act. Whereas Lord Coke's rule requires that the woman be quick with child, which, as this court has decided, means more than pregnant, and requires that the child shall have reached some degree of quasi independent life at the moment of the act. Commonwealth v. Parker, 9 Metc. 263. State v. Cooper, 2 Zabr. 52.

For the same reason, this limitation of criminal liability is equally inconsistent with any argument drawn from the rule as to devises and vouching to warranty, which is laid down without any such limitation, and which may depend on different considerations. Co. Lit. 390 a, and cases cited. Reeve v. Long, 1 Salk. 227. Scatterwood v. Edge, 1 Salk. 229. Harper v. Archer, 4 Sm. & M. 99.

If these general difficulties could be got over, and if we should assume, irrespective of precedent, that a man might owe a civil duty and incur a conditional prospective liability in tort to one not yet in being, and if we should assume also that causing an infant to be born prematurely stands on the same footing as wounding or poisoning, we should then be confronted by the question raised by the defendant, whether an infant dying before it was able to live...

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133 cases
  • Britt v. Sears
    • United States
    • Indiana Appellate Court
    • December 29, 1971
    ...of wrongful death before birth but with pre-natal injury to a child thereafter born alive. The first such case is Dietrich v. Northampton (1884), 138 Mass. 14, 52 Am.Rep. 242, which iterated what is said to have been the common law belief that the unborn child is a part of the mother who is......
  • Com. v. Edelin
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • December 17, 1976
    ...preference for the view that the prenatal acts could not ground a manslaughter despite the later live birth and death. Dietrich v. Northampton, 138 Mass. 14, 15, 17 (1884). (Common sense, besides common law, tended to support this position, for if a contrary rule were adopted, a putative de......
  • Poe v. Gerstein
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • August 18, 1975
    ...for tortious injury to the fetus at all. See, e. g., Stidam v. Ashmore, 109 Ohio App. 431, 167 N.E.2d 106 (1959); Dietrich v. Inhabitants of Northampton, 138 Mass. 14 (1884).18 See Note, Abortion: The Father's Rights, 42 Cincinnati L.Rev. 441, 442-44 (1973).19 The law regulating adoption pr......
  • Witty v. American General Capital Distributors, Inc.
    • United States
    • Texas Supreme Court
    • February 25, 1987
    ...Torts Involving the Unborn--A Limited Cosmology, 31 Baylor L.Rev. 131, 134-35 (1979). The leading case, Dietrich v. Inhabitants of Northampton, 138 Mass. 14, 52 Am.Rep. 242 (1884), controlled American common law for more than sixty years. Morrison, supra, at 138. In 1946, a court permitted ......
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7 books & journal articles
  • Wrongful Death of the Fetus: Viability Is Not a Viable Distinction
    • United States
    • Seattle University School of Law Seattle University Law Review No. 8-01, September 1984
    • Invalid date specifically allows recovery for the wrongful death of minor children under Wash. Rev. Code § 4.24.010. See supra note 8. 20. 138 Mass. 14 (1884), overruled, Torigian v. Watertown News Co., 352 Mass. 446, 225 N.E.2d 926 21. Id. at 17. 22. According to the 1939 Restatement of Torts, "a p......
  • Unborn children as constitutional persons.
    • United States
    • Issues in Law & Medicine Vol. 25 No. 3, March 2010
    • March 22, 2010
    ...prenatal injuries" was not actually traditional. That is to say, Justice Oliver Wendell Holmes, Jr.'s holding in Dietrich v. Northampton, 138 Mass. 14 (1884) had no direct precedent under the common law. See Torigian v. News Co. Inc., 352 Mass. 446, 447 (1967), which states: In Dietrich v. ......
  • 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
    ...injuries. Justice Holmes invented that doctrine well after the Amendment's ratification, in Dietrich v. Inhabitants of Northampton, 138 Mass. 14, 16-17 (1884), based on the fictions that the unborn child is "not yet in being" and so is merely "part of the mother." (State and federal courts ......
  • Fetal Abuse: An Exploration of Emerging Philosophic, Legal, and Policy Issues
    • United States
    • Sage Political Research Quarterly No. 42-2, June 1989
    • June 1, 1989
    ...inPunishment and Protection." In A. Carmi, ed., Child Abuse. Berlin:Springer-Verlag.Dietrich v. Inhabitants of Northhampton (1884) 138 Mass. 14.Engelhardt, T., Jr. 1983. "Viability and the Use of the Fetus." In W. B.Bondeson et al., eds., Abortion and the Status of the Fetus, pp. 183-208.Do......
  • Request a trial to view additional results

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