Drabbels v. Skelly Oil Co., 33054

• Citation: 155 Neb. 17,50 N.W.2d 229
• Decision Date: 07 December 1951
• Docket Number: No. 33054,33054
• Parties: DRABBELS v. SKELLY OIL CO. et al.
• Court: Supreme Court of Nebraska

Page 229

50 N.W.2d 229

155 Neb. 17

DRABBELS v. SKELLY OIL CO. et al.

No. 33054.

Supreme Court of Nebraska.

Dec. 7, 1951.

Syllabus by the Court.

1. A child born dead cannot maintain an action at common law for injuries received by it before its birth.

2. Since no cause of action accrues to a child born dead for prenatal injuries, none survives to the personal representative under the wrongful death statute.

Charles A. Fisher, Chadron, for appellant.

Leo M. Bayer, Alliance, for appellees.

Before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CARTER, Justice.

This is an action by the administrator of the estate of Coleen Ann Drabbels, deceased, for her wrongful death. The defendants filed identical demurrers to the petition which were sustained. Plaintiff elected to stand on his petition and the trial court thereupon entered judgment dismissing the action. Plaintiff appeals.

The petition alleges that the defendant Skelly Oil Company is engaged in the selling of bottled gas under the trade name of Skelgas and that the defendant Frey is the agent of the Skelly Oil Company at Gordon, Nebraska, for the handling, sale, and delivery of Skelgas to the public. It is further alleged that Virgil W. Drabbels purchased a container of Skelgas from the defendant Frey which, because of the defective condition of the container, exploded and caused the death of the decedent. The explosion occurred on July 2, 1948. The decedent, the unborn child of Audrey Drabbels, wife of Virgil W. Drabbels, was born dead on July 5, 1948. The petition alleges that at the time of the explosion the pregnancy of Audrey Drabbels had advanced to a period of approximately eight months and that the unborn child was viable and capable of separate and independent existence.

The demurrer is directed to the following: That decedent was dead when born, that the child was never an existing person, that there was never a person or estate for which the plaintiff could be appointed the administrator, and that plaintiff has no legal capacity to sue.

The action was commenced under the wrongful death statute of this state which provides: 'Whenever the death of a person shall be caused by the wrongful act, neglect or default, of any person, company or corporation, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.' Section 30-809, R.R.S.1943.

The question raised by the demurrer is here for determination for the first time. Briefly stated, the question is whether the administrator of the estate of an unborn child, which dies prior to birth as the result of another's negligence, has a cause of action on behalf of the next of kin of the unborn infant under the wrongful death statute.

The wrongful death statute is plain in stating that the right of action created by it exists only in cases wherein the injured person could himself have maintained an action for damages had he lived. It is clear, therefore, that plaintiff can maintain no action for damages on account of the death of the child unless the child, had it lived, could have maintained an action against the defendants for the injury inflicted upon it before its birth. The cases hold, from a numerical standpoint at least, that damages for prenatal injury may not be recovered either by the injured child if it be born and lives or by its personal representative in the event of its death before birth from such injury. The early common law appears to be to this effect.

In Dietrich v. Northampton, 138 Mass. 14, 52 Am.Rep. 242, it was said: 'Taking all the foregoing considerations into account, and further, that, as the unborn child was a part of the mother at the time of the injury, any damage to it which was not too remote to be recovered for at all was recoverable by her, we think it clear that the statute sued upon does not embrace the plaintiff's intestate within its meaning; * * *.'

In Allaire v. St. Luke's Hospital, 184 Ill. 359, 56 N.E. 638, 640, 48 L.R.A. 225, 75 Am.St.Rep. 176, a leading case on the subject, the court said: 'Appellant's counsel substantially admits that there is no precedent for the action. While it is true that this is not conclusive that the action may not be maintained, yet, in view of the fact that, as said by Mr. Associate Justice O' Brien, similar circumstances must have before occurred, it is entitled to great weight, especially when the right to maintain the action is, to say the least, doubtful. Mr. Associate Justice O'Brien, in Walker v. Great Northern Railway Co. (28 L.R.Ir. 69) says: 'The law is, in some respects, a stream, that gathers accretions with time, from new relations and conditions. But it is also a landmark that forbids advance on defined rights and engagements; and, if these are to be altered,--if new rights and engagements are to be created,--that is the province of legislation and not decision.' In this we fully concur. That a child before birth is, in fact, a part of the mother, and is only severed from her at birth, cannot, we think, be successfully disputed. The doctrine of the civil law and the ecclesiastical and admiralty courts, therefore, that an unborn child may be regarded as in esse for some purposes, when for its benefit, is a mere legal fiction, which, so far as we have been able to discover, has not been indulged in by the courts of common law to the extent of allowing an action by an infant for injuries occasioned before its birth. If the action can be maintained, it necessarily follows that an infant may maintain an action against its own mother for injuries occasioned by the negligence of the mother while pregnant with it. We are of opinion that the action will not lie.'

In Magnolia Coca Cola Bottling Co. v. Jordan, 124 Tex. 347, 78 S.W.2d 944, 950, 97 A.L.R. 1513, the court said: 'Good reason is found for denial of the right of recovery in the fact that in many cases it would be impossible to establish except by speculation or conjecture that the...