Gorman v. Budlong

• Decision Date: 09 July 1901
• Parties: GORMAN v. BUDLONG.
• Court: Rhode Island Supreme Court

49 A. 704

23 R.I. 169

GORMAN

v. BUDLONG.

Supreme Court of Rhode Island.

July 9, 1901.

Action by Patrick Gorman against Robert E. Budlong. Demurrer to the declarations sustained.

Leonard W. Horton, for plaintiff.

Frederick A. Jones, for defendant.

ROGERS, J. This case is before us upon demurrer to the plaintiff's declaration. It is an action of trespass on the case, for negligence, brought by the plaintiff, as father and next of kin of Patrick Gorman, Jr., and the facts, as alleged, are that the plaintiff was a tenant from week to week of a tenement of the defendant; that the plaster of the ceiling of the kitchen in said tenement became loose and liable to fall; that on or about November 15, 1900, and again on or about December 1, 1900, the plaintiff notified the defendant, his agents and servants, of the defective and dangerous condition of said ceiling; that in consideration that said plaintiff and the members of his family would continue in said tenement as his tenants, and in consideration that said plaintiff would and did continue to pay, or become liable to pay, the weekly rent for the same, as he had previously been accustomed to do, said defendant, his agents and servants, promised to have said tenement repaired and said ceiling replastered so as to make the same safe for said plaintiff and the members of his family to live in, and not subject him, them, or any of them, to great danger of serious injury, whereupon it became and was the duty of said defendant to make or cause to be made the repairs necessary to make said tenement safe for said plaintiff and the members of his family to live in, and not subject him, them, or any of them, to great danger of serious injury, and to put said tenement in a tenantable condition, yet said defendant, in violation of his said duty, wholly neglected to make said necessary repairs, and that there after wards, on, to wit, January 22, 1901, in consequence of said plaintiff's neglecting to make said necessary repairs, said ceiling fell upon Eliza Gorman, the plaintiff's wife, while she was engaged in her household duties and in the exercise of due and reasonable care and caution on her part, severely Injuring and bruising her, and that, from and on account of the injuries and shock occasioned by said ceiling falling upon her, the said Eliza Gorman was caused to give birth to a child prematurely, which said child afterwards, on, to wit, January 25, 1901, on account of said premature birth, died; that on account of said premature birth of said child, and the weakness and illness resulting therefrom, said plaintiff was obliged to, and did, pay, lay out, and expend large sums of money, to wit, the sum of dollars, for medical attendance and nursing and medicines in the proper care and treatment of said child; that on account of said death of said child, occasioned as aforesaid, said plaintiff was obliged to, and did, pay, lay out, and expend large sums of money, to wit, the sum of dollars. In the burial of said child and other necessary funeral expenses, to the plaintiff's damage $5,000, etc. The action was brought to recover for the death of the child, under Gen. Laws R. I. c. 233, § 14, which is as follows, viz.: "Sec. 14. 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, then, and in every such case, the person who, or the 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 a felony. Every such action shall be brought by and in the name of the executor or administrator of such deceased person, whether appointed or qualified within or without the state, and the amount recovered in every such action shall one-half thereof go to the husband or widow, and one-half thereof, to the children of the deceased, and if there be no children the whole shall go to the husband or widow, and if there be no husband or widow, to the next of kin, in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate: provided, that every such action shall be commenced within two years after the death of such person. If there is no executor or administrator, or if, there being one, no action is brought in his name within six months after the death, one action may be brought in the names of all the beneficiaries, either by all, or by part stating that they sue for the benefit of all, and stating their respective relations to the deceased: provided, that if all do not bring such suit, only those bringing it shall be responsible for costs; but judgment shall be for the benefit of all, and shall be entered as several judgments for each in his proportion as aforesaid, and executions thereon shall issue in favor of each respectively: provided, further, that if such action shall be brought by the beneficiaries, no action shall thereafter be brought by the executor or administrator. There shall be but one bill of costs in favor of the plaintiffs, which shall enure equally for the benefit of those bringing the suit, and of them only." The defendant demurred to the declaration, which consists of one count only, on the following grounds, viz.: (1) That the plaintiffs intestate could not have maintained an action for damages against the defendant had he survived, and therefore the plaintiff in this case has no right of action against said defendant; (2) that said action is improperly brought under chapter 233, § 14, of the General Laws; (3) that said plaintiff's intestate, not being recognized by the law as a person capable of having a standing in court, cannot be represented by the plaintiff in this case; (4) that said plaintiff, who sues in his representative capacity as next of kin of Patrick Gorman, Jr., seeks to recover for money expended in his individual capacity.

Inasmuch as, to enable the plaintiff to recover, the act, neglect, or default must have been such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the question at once presenting itself is, can one maintain an action for injuries received by him while in his mother's womb? The plaintiff has prepared an ingenious brief, and lays great stress upon the acts an unborn child can do, citing many authorities, and seeking by analogy to reach the conclusion to which he would have the court arrive. Unquestionably, an unborn child has many rights and privileges, but it matters not what rights and privileges it has if it had not the right, had it lived, to maintain an action for the injury alleged to have been suffered in this case. In Walker v. Railway Co. (decided in 1891) L. R. 28 Ir. 69, the plaintiff, an infant of a few months of age, brought an action for personal injuries against the defendant for injuries sustained by her while en ventre sa mere, whereby she was permanently crippled...