Hall v. Murphy, No. 17642

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: OXNER; STUKES
• Citation: 236 S.C. 257,113 S.E.2d 790
• Parties: A. R. HALL, as Temporary Administrator of the Estate of Ruth Elizabeth Hall, Respondent, v. C. W. MURPHY, Appellant.
• Docket Number: No. 17642
• Decision Date: 13 April 1960

Page 790

113 S.E.2d 790 236 S.C. 257 A. R. HALL, as Temporary Administrator of the Estate of Ruth
Elizabeth Hall, Respondent,
v.
C. W. MURPHY, Appellant. No. 17642. Supreme Court of South Carolina. April 13, 1960.

Page 791

[236 S.C. 258] Francis R. Fant, Rufus Fant, William L. Fant, Anderson, for appellant.

G. Ross Anderson, Jr., Anderson, Gary D. Brown, Abbeville, Luke N. Brown, Jr., Ridgeland, for respondent.

OXNER, Justice.

These two actions grew out of a collision between an automobile and a bus which occurred in Union County on [236 S.C. 259] April 21, 1959. It is claimed that as a result of injuries sustained, a passenger riding in the automobile prematurely gave birth to a child, Ruth Elizabeth Hall, who lived only four hours, and that the child's death resulted from injuries sustained in the collision. Neither complaint discloses how far the mother was advanced in pregnancy but it seems to be assumed that the child was viable. Alleging that the injuries were due to the negligence and recklessness of the driver of the automobile, the first action named in the title was brought under the survival statute (Section 10-209 of the 1952 Code) to recover damages for alleged 'pain and agony' suffered by the child during that brief period of her life. The second action was brought for the benefit of the parents to recover damages for her alleged wrongful death (Section 10-1951 et seq. of the 1952 Code). The venue was laid in Anderson County where the defendant resided. Each case is here on appeal by defendant from an order overruling a demurrer to the complaint. Although there are separate appeals which were separately argued, the fundamental question involved in the two cases is the same and we shall dispose of them in one opinion.

The test of the right of an administrator to maintain an action for alleged wrongful death is whether deceased could have maintained an action for the injury had he survived. Price v. Richmond & Danville Railroad Company, 33 S.C. 556, 12 S.E. 413. So the decisive question in each of these cases is whether a child who, while viable and capable of existing independently of its mother, suffers a prenatal injury through the alleged negligence of another, may after its birth maintain a cause of action against such other for damages on account of the injury sustained.

In West v. McCoy, 233 S.C. 369, 105 S.E.2d 88, 91, we held that an action would not lie for the alleged wrongful death of an unborn baby whose mother suffered a miscarriage after five and a half months of

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pregnancy. But we left open the precise question now presented. It was there stated: 'We are * * * not concerned here with [236 S.C. 260] whether an action may be maintained by a child injured while En Ventre Sa Mere and born alive, and intimate no opinion thereabout, but where the mother suffered a miscarriage after approximately five and one-half months of pregnancy.'

Dietrich c. Inhabitants of Northhampton, 138 Mass. 14, decided in 1884, appears to have been the first case either in England or the United States to pass upon the right of an unborn child to recover damages for a tort. In that case the mother slipped and fell when she was four or five months advanced in pregnancy. As a result, the child was born prematurely, and lived only fifteen minutes. The Court held that a cause of action could not be maintained for its alleged wrongful death.

The Dietrich case was followed in 1900 by the Illinois Supreme Court, one Justice dissenting. Allaire v. St. Luke's Hospital, 184 Ill. 359, 56 N.E. 638, 48 L.R.A. 225. There then came decisions from about nine other jurisdictions holding that there could be no recovery for prenatal injuries....