Durrett v. Owens
Citation | 212 Tenn. 614,371 S.W.2d 433,16 McCanless 614 |
Court | Tennessee Supreme Court |
Decision Date | 11 October 1963 |
Parties | Lurton E. DURRETT, and wife, Mary T. Durrett, Plaintiffs in Error, v. Willie Lee OWENS, Defendant in Error. 16 McCanless 614, 212 Tenn. 614, 371 S.W.2d 433 |
Ward DeWitt, Jr., Nashville, for plaintiffs in error.
W. Ovid Collins, Jr., Nashville, for defendant in error.
This is an appeal from the action of the trial judge in sustaining a demurrer to the declaration and dismissing the action. The declaration reads, in part, as follows:
The declaration further alleges, in substance, that the defendant negligently drove his automobile into the plaintiffs' automobile; that about two weeks following the accident, the plaintiffs' male child was delivered as a stillbirth; and that the child's death was the direct and proximate result of injuries received by the child as a consequence of the defendant's negligence in the operation of his automobile.
To this declaration the defendant filed a demurrer. The ground of the demurrer is that,
The plaintiffs in error say that the determinative issue is whether a viable child is a 'person' within the meaning of the Tennessee Wrongful Death Statute, and that this question has been answered affirmatively in the case of Shousha v. Matthews Drivurself Service, Inc., 210 Tenn. 384, 358 S.W.2d 471 (1962).
The defendant in error contends that Shousha in authority only for the proposition that a viable child who sustains injuries has a cause of action upon being born alive, which in case of subsequent death is preserved by said statute to its parents or next of kin. The question then, according to the defendant in error, is whether this Court will modify its holding in Shousha and expressly overrule Hogan v. McDaniel, 204 Tenn. 235, 319 S.W.2d 221 (1958), by eliminating the condition that the child must be born alive in order to have a cause of action.
We said in Shousha v. Matthews Drivurself Service, Inc., supra,
'* * * we expressly hold that a viable infant en ventre sa mere suffering injuries may, upon being born alive, prosecute an action against those negligently inflicting such injuries to recover compensation therefor.' 210 Tenn. at 397, 358 S.W.2d at 471 (Emphasis supplied).
It is strongly contended the case of Hogan v. McDaniel, supra, has been overruled by Shousha. With this we do not agree.
In the latter case we said:
'We believe the rationale of the Hogan case is that the Statute did not entitle the next of...
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