Hornbuckle v. Plantation Pipe Line Co.

• Decision Date: 12 June 1956
• Docket Number: No. 19308,19308
• Citation: 93 S.E.2d 727,212 Ga. 504
• Court: Georgia Supreme Court
• Parties: Jan Renee HORNBUCKLE, by Next Frlend, v. PLANTATION PIPE LINE COMPANY.

Page 727

93 S.E.2d 727

212 Ga. 504

Jan Renee HORNBUCKLE, by Next Frlend, v. PLANTATION PIPE LINE COMPANY.

No. 19308.

Supreme Court of Georgia.

June 12, 1956.

Rehearing Denied July 11, 1956.

G. Ernest Tidwell, John L. Westmoreland, John L. Westmoreland, Jr., Atlanta, for plaintiff in error.

Moise, Post & Gardner, R. Emerson Gardner, Atlanta, for defendant in error.

Syllabus Opinion by the Court

HAWKINS, Justice.

This case is here on certiorari from the Court of Appeals, excepting to a holding by that court, in Plantation Pipe Line Co. v. Hornbuckle, 93 Ga.App. 391, 91 S.E.2d 773, that 'A born child cannot maintain an action for alleged tortious injuries alleged to have been sustained by it as an embryo or foetus not quick in its mother's womb', in which opinion that court, in leversing the trial court, stated: 'Since the plaintiff was not quick in her mother's womb at the time of the injuries complained of, the court erred in overruling the general demurrer to the petition.' Held:

'For every right there shall be a remedy' Code, § 3-105, and 'A physical injury done to another shall give a right of action,' Code, § 105-601, and 'Every person may recover for torts committed to himself.' Code, § 105-107. Where a child is born after a tortious injury sustained at any period after conception, he has a cause of action. Kelly v. Gregory, 282 App.Div. 542, 125 N.Y.S.2d 696; Tucker v. Howard L. Carmichael & Sons, 208 Ga. 201, 206, 65 S.E.2d 909. 'One cannot examine the cases in which a child, physically or mentally deformed for life as a result of prenatal injuries caused by the wrongful act of another, has been denied a right of recovery for such injuries, without being impressed by the harshness of such a result.' 10 A.L.R.2d 1059, 1071. See also 27 A.L.R.2d 1250, 1259. As was said in the Tucker case, 208 Ga. 201, 206, 65 S.E.2d 909, 912, supra, 'It would be contrary to every principle of right and justice, which are the very essence of law, to deny such rights to the injured child.' At what particular moment after conception, or at what particular period of the prenatal existence of the child the injury was inflicted is not controlling, for, as was said in Morrow v. Scott, 7 Ga. 535, 537, 'In * * * general, a child is to be considered as in being, from the time of its conception, where it will be for the benefit of such child to be so considered.' While we realize that cases such as this might present extreme difficulties as to proof, we are not concerned with that question here. The petition alleges that the plaintiff, who is now in life, received prenatal injuries caused by the alleged negligent operation of an automobile by the defendant, which caused it to collide with the automobile in which the plaintiff's mother was riding while pregnant, which resulted in the plaintiff being born with a deformed right foot, right ankle, and right leg, and in passing upon the demurrer these allegations must be taken as true. If a child born after an injury sustained at any period of its prenatal life can prove the effect on it of a tort, it would have a right to recover. The trial court having overruled a general demurrer to the petition, the Court of Appeals erred in reversing that judgment.

Judgment reversed.

All the Justices concur except ALMAND J., who dissents.

DUCKWORTH, C. J., concurs in the judgment, but not in all that is said in the opinion.

DUCKWORTH, Chief Justice (concurring specially).

The opinion in Tucker v. Howard L. Carmichael & Sons, 208 Ga. 201, 65 S.E.2d 909, shows plainly that I believe in making available the legal processes for the protection of the person of every human being from injuries resulting from tort. But I believe we went as far as sound logic and legal principles will permit. That ruling authorizes a child to sue for injuries it sustained while in its mother's womb, provided it was quick, hence a human being at the time of such injury.

The ruling of the majority in this case extends that ruling to allow the child to maintain a suit for damages to the cell from which it came, even though the cell had been conceived ten seconds. It ignores reality and fact. It simply by-passes the inflexible rule of law that for one to maintain a suit for personal injury, the injury must be either to the person of the suer or that of a relative or one upon whom he is dependent. This indispensible requisite is completely absent here. The cell is not the person of anyone, and whether it becomes such is dependent upon the processes of nature which raises it from a mere cell to a human being. When I say that one can not sue for an injury to a stranger or the property of a stranger, there can be no logical denial. The majority ruling allows the baby to sue for injury, not to itself for it is not in being at the time of the injury and hence could not have suffered personal injury; nor can it claim ownership of the injured cell at a time when it had never lived.

The ruling of the majority may well cause our courts of justice to become dumping grounds for faked and fraudulent suits. They may well become the helpless instrumentalities through which helpless people are robbed by crooks. If an unscrupulous doctor, and I am sure that great profession has some, testifies as an expert, where he is not required to give facts for the basis of his opinion, that the cell from which the suing baby came was injured five seconds after conception, and this testimony is not contradicted, the court which knows that such injury was neither to the plaintiff nor to anything that belonged to it, must stultify itself and give judgment for damages. If a baby can sue for injuries sustained five seconds after conception, as the majority rules, why not allow such suits for injuries before conception, even unto the third and fourth generations?

We have the law confused too much already. In Biegun v. State, 206 Ga. 618, 58 S.E.2d 149, it was said, I believe incorrectly, that as a matter of law a baby did not become quick until four months after conception. The Court of Appeals had no choice but under the Constitution they were compelled to follow that unsound ruling of ours. Doing so, they held that as a matter of law the child had not become quick at the time of the...