Hall v. Murphy

Decision Date13 April 1960
Docket NumberNo. 17642,17642
Citation236 S.C. 257,113 S.E.2d 790
PartiesA. R. HALL, as Temporary Administrator of the Estate of Ruth Elizabeth Hall, Respondent, v. C. W. MURPHY, Appellant.
CourtSouth Carolina Supreme Court

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 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 pregnancy. But we left open the precise question now presented. It was there stated: 'We are * * * not concerned here with 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. Among them were: 8buel v. United Railways Co., 1913, 248 Mo. 126, 154 S.W. 71, 45 L.R.A., N.S., 625; Drobner v. Peters, 1921, 232 N.Y. 220, 133 N.E. 567, 20 A.L.R. 1503.

In 1949, a trend away from the Dietrich case began. Williams v. Marion Rapid Transit, Inc., 152 Ohio St. 114, 87 N.E.2d 334, 10 A.L.R.2d 1051; Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838, 10 A.L.R.2d 634. This trend has continued. Among the more recent cases permitting recovery are: Damasiewicz v. Gorsuch, 1951, 197 Md. 417, 79 A.2d 550; Tucker v. Howard L. Carmichael & Sons, Inc., 1951, 208 Ga. 201, 65 S.E.2d 909; Rainey v. Horn, 1954, 221 Miss. 269, 72 So.id 434; Mallison v. Pomeroy, 1955, 205 Or. 690, 291 P.2d 225; Prates v. Sears, Roebuck & Co., 1955, 19 Conn.Sup. 487, 118 A.2d 633; Mitchell v. Couch, Ky.1955, 285 S.W.2d 901; Poliquin v. MacDonald, 1957, 101 N.H. 104, 135 A.2d 249.

Other decisions on the right to recover for prenatal injuries are annotated in 10 A.L.R.2d 1059 and 27 A.L.R.2d 1256.

Writers who have considered the question have criticized the Dietrich case as unsound and illogical and have unformly urged that a viable child, who survives birth, should be permitted, upon proper proof, to recover for injuries incurred before birth.

It is noteworthy that some of the courts following the Dietrich case later overruled their decisions. In 1953, Buel v. United Railways Co., supra, 248 Mo. 126, 154 S.W. 71, 45 L.R.A.,N.S., 625, was overruled by the Supreme Court of Missouri. Steggall v. Morris, 363 Mo. 1224, 258 S.W.2d 577. In 1951, the Court of Appeals of New York overruled Drobner v. Peters, supra, 232 N.Y. 220, 133 N.E. 567, 20 A.L.R. 1503; Woods v. Lancet, 303 N.Y. 349, 102 N.E.2d 691, 27 A.L.R.2d 1250. In 1953 the Supreme Court of Illinois overruled Allaire v. St. Luke's Hospital, supra, 184 Ill. 359, 56 N.E. 638, 45 L.R.A. 225; Amann v. Faidy, 415 Ill. 422, 114 N.E.2d 412.

Although Massachusetts still adheres to its decision in the Dietrich case, it is significant that when the question was against before it in Bliss v. Passanesi, 1950, 326 Mass. 461, 95 N.E.2d 206, 207, the Court said: 'We do not intimate what our decision ould be if the question were presented for the first time.'

In Amann v. Faidy, supra, 415 Ill. 422, 114 N.E.2d 412, 415, Mr. Justice Schaefer in a well considered opinion summarized the reasons underlying the divergent views as follows:

'As they emerge from the many opinions which have now considered the problem, the chief grounds urged in support of the rule...

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32 cases
  • Phillips v. United States, Civ. A. No. 79-553-8.
    • United States
    • U.S. District Court — District of South Carolina
    • December 12, 1980
    ...Prenatal torts of this kind are recognized in South Carolina. Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964); Hall v. Murphy, 236 S.C. 257, 113 S.E.2d 790 (1960). Under Fowler, a cause of action for wrongful death exists if, at the time of the negligent act, the fetus is viable, reg......
  • Ankrom v. State (Ex parte Ankrom)
    • United States
    • Supreme Court of Alabama
    • January 11, 2013
    ...recognized that viable fetuses are persons holding certain legal rights and privileges. In 1960, this Court decided Hall v. Murphy, 236 S.C. 257, 113 S.E.2d 790 (1960). That case concerned the application of South Carolina's wrongful death statute to an infant who died four hours after her ......
  • Humes v. Clinton
    • United States
    • United States State Supreme Court of Kansas
    • May 25, 1990
    ...N.E.2d 912 (1960); Carroll v. Skloff, 415 Pa. 47, 202 A.2d 9 (1964); Simmons v. Weisenthal, 29 Pa.D. & C.2d 54 (1962); Hall v. Murphy, 236 S.C. 257, 113 S.E.2d 790 (1960). More recently, some courts have expressed a view that an action may be maintained for prenatal injuries negligently inf......
  • White v. Yup
    • United States
    • Supreme Court of Nevada
    • September 12, 1969
    ......Kneale, 401 Pa. 267, 164 A.2d 93 (1960); Rhode Island: Sylvia v. Gobeille, 101 R.I. 76, 220 A.2d 222 (1966); South Carolina: Hall v. Murphy, 236 S.C. 257, 113 S.E.2d 790 (1960); Tennessee: Shousha v. Matthews Drivurself Serv., Inc., 210 Tenn. 384, 358 S.W.2d 471 (1962); Texas: ......
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