Drobner v. Peters

• Decision Date: 06 December 1921
• Citation: 133 N.E. 567,232 N.Y. 220
• Parties: DROBNER v. PETERS.
• Court: New York Court of Appeals Court of Appeals

232 N.Y. 220

133 N.E. 567

DROBNER

v.PETERS.

Court of Appeals of New York.

Dec. 6, 1921.

Action by Joseph Drobner, an infant, by his guardian ad litem, sarah Drobner, against August L. Peters. From an order of the Appellate Division (194 App. Div. 696,186 N. Y. Supp. 278), affirming an order of the Special Term (184 N. Y. Supp. 337) denying defendant's motion for judgment on the pleadings, defendant appeals by permission (195 App. Div. 942,186 N. Y. Supp. 938). Question certified: ‘Does the complaint herein state facts sufficient to constitute a cause of action?’

Order appealed from reversed.

Motion for judgment on the pleadings granted, and question certified answered in the negative.

Cardozo, J., dissenting.

Appeal from Supreme Court, Appellate Division, First department.

William Dike Reed and William B. Shelton, both of New York City, for appellant.

David Batt and J. M. Cohen, both of New York City, for respondent.

POUND, J.

Defendant negligently permitted a coalhole in the sidewalk in front of his premises to remain uncovered. Plaintiff's mother fell into it. Plaintiff, in his mother's womb, sustained injuries. Born 11 days after the accident, he now brings this action. It is contended that at the time of the injury he was not a person, but was a part of the body of his mother, and that, as the injury was to his mother, he has no cause of action.

Mr. Justice Holmes said in 1884, in Dietrich v. Northampton, 138 Mass. 14, 52 Am. Rep. 242, that no case, so far as he knew, had ever decided that an infant could maintain an action for injuries received in the mother's womb. The great weight of authority is still against the plaintiff's contention that the unborn child has a right of immunity from personal harm (Allaire v. St. Luke's Hospital, 184 Ill. 359, 56 N. E. 638,48 L. R. A. 225, 75 Am. St. Rep. 176; Walker v. Great Northern Ry. Co., 28 L. R. Ir. 69; Gorman v. Budlong, 23 R. I. 169, 49 Atl. 704,55 L. R. A. 118, 91 Am. St. Rep. 629;Buel v. United Rys. Co., 248 Mo. 126, 154 S. W. 71,45 L. R. A. [N. S.] 625, Ann. Cas. 1914C, 613;Lipps. v. Milwaukee, etc., Co., 164 Wis. 272, 159 N. W. 916, L. R. A. 1917B, 334), although much judicial argument has been advanced to support a contrary ruling (Nugent v. Brooklyn Heights R. R. Co., 154 App. Div. 667, 139 N. Y. Supp. 367; dissenting opinion, Boggs, J., Allaire v. St. Luke's Hospital, supra; Beven on Negligence [3d Ed.] 73, 76).

In Quinlen v. Welch, 69 Hun, 584, 23 N. Y. Supp. 963, it was held that a child born after the father's death was a child at the time of the injury which caused the death, within the meaning of the Civil Damage Act (Laws 1873, c. 646), and as such was entitled to maintain an action for injury in means of support against the person who sold intoxicating liquors to the father, but this court on appeal (Quinlan v. Welch, 141 N. Y. 158, 165,36 N. E. 12) carefully declined as unnecessary to the decision either to approve or disapprove the views expressed by Haight, J., below.

The reasons given to defeat recovery in such a case are: Lack of authority; practical inconvenience and possible injustice; no separate entity apart from the mother, and therefore no duty of care; no person or human being in esse at the time of the accident. They are not absolutely conclusive against the infant en ventre sa mere.

‘The law in many cases hath consideration of him in respect of the apparent expectation of his birth.’ 7 Coke Rep. 8b.

By a legal fiction or indulgence, a legal personality is imputed to an unborn child as a rule of property for all purposes beneficial to the infant after his birth (The George & Richard, L. R. 3 Ad. & Ecc. 466), but not for purposes working to his detriment (Villar v. Gilbey, [1907] A. C. 139, 145). By the criminal law, such being the solicitude of the state to protect life before birth, it is a great crime to kill the child after it is able to stir in the mother's womb by any injury inflicted upon the person of the mother (Penal Law, § 1050), and it may be murder if the child is born alive and dies of prenatal injuries (Clarke v. State, 117 Ala. 1, 23 South. 671,67 Am. St. Rep. 157). If the mother with the intent to produce her own miscarriage produces the death of the quick child whereof she is pregnant, she may be guilty of manslaughter. Penal Law (Consol. Laws, c. 40) § 1052. If the child is not quick, it may be felony to produce a miscarriage. Penal Laws, §§ 80, 81. If a female convict under sentence of death is quick with child she may not be executed. Code Crim. Proc. §§ 500, 505. Many authorities are collected in the comprehensive prevailing opinion below. While they tend to cloud the real issue, they are not controlling. Rights of ownership of property do not connote a duty of personal care to the inchoate owner, nor does the crime of causing the death of an unborn child connote liability to the child for personal injuries. When justice or convenience requires, the child in the womb is dealt with as a human being, although physiologically it is a part of the mother, but the law has been fairly well settled during its centuries of growth against the beneficence of an artificial rule of liability for personal injuries sustained by it.

Does the present case permit the establishment by...