Hale v. Manion

Citation189 Kan. 143,368 P.2d 1
Decision Date20 January 1962
Docket NumberNo. 42381,42381
PartiesHubert HALE and Delores Hale, Appellants, v. Opal A. MANION and Robert Manion, d/b/a El Dorado Cab Company, and Alvin Schiesser, Appellees, and William E. Bright, Defendant.
CourtKansas Supreme Court

Syllabus by the Court.

Under our wrongful-death statute (G.S.1959 Supp. 60-3203) an action may be maintained for the wrongful death of a viable unborn child resulting from the negligent acts of another.

Ervin E. Grant, El Dorado, argued the cause, and E. W. Grant, El Dorado, and C. C. Whittaker, Jr., Eureka, were with him on the brief for appellants.

Richard C. Hite, Wichita, argued the cause, and M. F. Litras, El Dorado, and W. A. Kahrs, Robert H. Nelson and H. W. Fanning, Wichita, were with him on the brief for appellees.

PRICE, Justice.

The question in this case is whether the parents of a child who dies prior to birth as the result of another's negligence have a cause of action under the wrongful-death statute.

The trial court held they do not and plaintiff parents have appealed.

A brief summary of the amended petition follows:

For several months prior to February 29, 1960, plaintiff mother was pregnant and had been receiving prenatal care and treatment from her physician. On that date she was a fare-paying passenger in a taxicab owned by defendant cab company and being driven by defendant Schiesser. The cab was involved in a collision with a vehicle owned and operated by defendant Bright, and as a result thereof she sustained injuries. That evening she commenced to discharge blood and telephoned her physician. He prescribed certain medicines and bedrest for three days. Several days later, on March 6, she experienced severe cramps and that evening, at the direction of her physician, was admitted to a hospital. At that time she was informed and believed that her pregnancy was intact, but early in the morning on March 7 severe cramping again occurred and she 'was thereupon delivered of a perfectly formed male child, which did not survive birth.' The impact of the collision of February 29 caused the disruption of the placenta or afterbirth and was responsible for the inability of the placenta to retain its maternal attachment and caused the death of her child.

Allegations concerning the alleged acts of negligence on the part of defendants need not be noted.

Separate demurrers to the amended petition by the three defendants on the ground that pleading failed to state facts sufficient to constitute a cause of action were sustained--whereupon plaintiff parents have appealed.

By stipulation of the parties the appeal has been dismissed as to defendant Bright.

Our wrongful-death statute (G.S.1959 Supp. 60-3203) provides that when the death of one is caused by the wrongful act or omission of another, an action therefor may be maintained against the wrongdoer if the deceased--had he lived--might have maintained an action against such wrongdoer for an injury for the same act or omission.

The statute makes it clear that the right of action created 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 parents can maintain no action for damages on account of the death of the child unless the child, had he lived, could have maintained an action against defendants for the injury inflicted upon him before his birth--that is to say, unless the child, had he lived, could have maintained an action for his prenatal injuries.

Inherent, therefore, in the precise question presented here--that is, whether the parents may recover for the death of their stillborn child--is the further question whether the child, had he been born alive, could have maintained an action for prenatal injuries.

Although the question of the right of a child to recover for its prenatal injuries has not been decided by this court, the matter has been passed upon in a number of states as is shown by the annotations found at 10 A.L.R.2d 1059 and 27 A.L.R.2d 1256. One of the leading cases on the subject appears to be Williams v. Marion Rapid Transit, Inc., 152 Ohio St. 114, 87 N.E.2d 334, 10 A.L.R.2d 1051 (1949), in which it was held that an unborn viable child injured by another's negligence may, after birth, maintain an action for such injury. The rationale of the decisions supporting the right of a child to maintain an action for its prenatal injuries appears to be that an unborn viable child is capable of independent existence and hence should be regarded as a separate entity, and to deny it such right would bring about extremely harsh results.

On the second proposition--and which also is new in this state, that is, whether, under wrongful-death statutes similar to ours, parents can maintain an action for the death of their stillborn child allegedly caused by the negligence of another--the courts of other jurisdictions are divided, as is shown by the annotation on the subject appearing at 10 A.L.R.2d 639, following the reported case of Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838, 10...

To continue reading

Request your trial
52 cases
  • Justus v. Atchison
    • United States
    • California Supreme Court
    • 8 Junio 1977
    ... ... Brandenberg (1973) 55 Ill.2d 368, 304 N.E.2d 88 ... Indiana: Britt v. Sears (1971) 150 Ind.App. 487, 277 N.E.2d 20 ... Kansas: Hale v. Manion (1962) 189 Kan. 143, 368 P.2d 1 ... Kentucky: Mitchell v. Couch (Ky.1955) 285 S.W.2d 901; accord, Rice v. Rizk (Ky.1970) 453 S.W.2d 732 ... ...
  • Ankrom v. State (Ex parte Ankrom)
    • United States
    • Alabama Supreme Court
    • 11 Enero 2013
  • Justice v. Booth Maternity Center
    • United States
    • Pennsylvania Superior Court
    • 20 Septiembre 1985
    ... ... 5 See Gorke v. Le Clerc, 23 Conn.Sup. 256, 181 A.2d 448 (1962); Worgan v. Greggo and Ferrara, Inc., 50 Del. 258, 128 A.2d 557 (1957); Hale v. Manion, 189 Kan. 143, 368 P.2d 1 (1962); Mitchell v. Couch, 285 S.W.2d 901 (Ky., 1955); State of Maryland, Use of Odham v. Sherman, 234 Md ... ...
  • Britt v. Sears
    • United States
    • Indiana Appellate Court
    • 29 Diciembre 1971
    ... ... Lassiter (1955), 91 Ga.App. 712, 87 S.E.2d 100; IOWA: Wendt v. Lillo (D.C.Iowa1960), 182 F.Supp. 56 (applying Iowa law); KANSAS: Hale v. Manion (1962), 189 Kan. 143, 368 P.2d 1; KENTUCKY: Mitchell v. Couch (1955, Ky.), 285 S.W.2d 901; LOUISIANA: Valence v. Louisiana Power & Light ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT