Fowler v. Woodward
| Citation | 244 S.C. 608,138 S.E.2d 42 |
| Decision Date | 14 September 1964 |
| Docket Number | No. 18259,18259 |
| Parties | Jimmy FOWLER, Administrator of the Estate of Baby Child (unnamed) Fowler, Respondent, v. Freddie WOODWARD, Appellant. |
| Court | United States State Supreme Court of South Carolina |
Leatherwood, Walker, Todd & Mann, Greenville, Hemphill & Hemphill, Chester, for appellant.
McElveen & McElveen, Columbia, Gaston & Gaston, Chester, for respondent.
This is an appeal from an order of the circuit court overruling a demurrer to the complaint. The action is for damages for the wrongful death of an unborn, viable infant. The complaint alleges that the infant, while in the eighth month of gestation, perished with its mother in an automobile collision, and ensuing fire, which was caused by the negligent and willful misconduct of the defendant. The demurrer is for insufficiency of facts to state a cause of action and for lack of legal capacity to sue, in that, the complaint fails to allege that the infant 'was born alive and thereafter died as a result of the actions and injuries alleged and complained of.'
The action is brought under the wrongful death statute, Section 10-1951, et sequa, Code, 1962, and the controlling issue is whether the facts alleged state a case for recovery under the statute, which we quote:
'Whenever the death of a person shall be caused by the wrongful act, neglect or default of another 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, the person who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured * * *.'
Until 1958, no case had come before this court involving prenatal injury as a ground of action, either for the benefit of the child or for its wrongful death. Many cases had been decided in this country, most of them until comparatively recently, following the view expressed by Mr. Justice Holmes in Dietrich v. Inhabitants of Northampton, 138 Mass. 14, 52 Am.Rep. 242, that is '* * * (A)s 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 at all, was recoverable by the * * *.' This rule, that injuries inflicted before birth could never support an action, was conducive of harsh results and has been abandoned by most courts. The unborn child, certainly after viability, is recognized as a distinct being capable of sustaining a legal wrong. We need not review these developments in the law, because that has been done in our own recent, 1960, case of Hall v. Murphy, 236 S.C. 257, 113 S.E.2d 790*; in which a prenatal injury to a viable child resulted in her death, some four hours after birth. We held that an action for the wrongful death of the child would lie, and, also, an action for personal injuries to the infant.
In the earlier, 1958, case of West v. McCoy, 233 S.C. 369, 105 S.E.2d 88, we denied recovery for the death of a non-viable child, whose mother suffered a miscarriage as the result of injuries negligently inflicted upon her. The opinion in that case recognized the departure of most courts from the old rule denying recovery for prenatal injuries regardless of circumstances, but refused to go to the extent of allowing recovery for wrongful death in the case of a non-viable, stillborn child.
Neither of these decisions is strictly controlling of the issue before us because of the factual differences which have been stated. However, we think that the rationale of the Hall case, in the light of the statute, clearly points to affirmance here.
An action for wrongful death will lie, under the terms of the statute, when the death of a person is caused by the act, neglect or default of another and the act is such as would, if death had not ensued, have entitled the party injured to maintain an action.
The Hall case, supra, is plenary authority that a viable fetus, 'having reached that period of prenatal maturity where it is capable of independent life apart from its mother is a person and if such a child is injured, it may after birth maintain an action for such injuries. * * *
'Having concluded that had (the child) lived, she could have maintained an action for any prenatal injury caused by defendant's negligence, it follows that the two actions (personal injury and wrongful death) now under consideration could be brought by her administrator.' (Interpolation ours.) 236 S.C. 263, 113 S.E.2d 793.
Since a viable child is a person before separation from the body of its mother and since prenatal injuries tortiously inflicted on such a child are actionable, it is apparent that the complaint alleges such an 'act, neglect or default' by the defendant, to the injury of the child, as would have entitled to child 'to maintain an action and recover damages in respect thereof * * * if death had not ensued.' By the very terms of the statute, this is the test of the right of an...
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