Howell v. Rushing
Decision Date | 15 September 1953 |
Docket Number | No. 35397,35397 |
Citation | 1953 OK 232,261 P.2d 217 |
Parties | HOWELL et al. v. RUSHING. |
Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. A child born dead cannot maintain an action at common law for injuries received by it before its birth.
2. Since no cause of action accrues to a child born dead for prenatal injuries,
none survives to the personal representative or next of kin under the wrongful death statute.
Reuel W. Little, Oklahoma City, Thomas E. Shaw, Madill, Edgar S. Vaught, Jr., Oklahoma City, for plaintiffs in error.
Welch & Welch, Madill, Pierce, Mock & Duncan, Oklahoma City, James W. Shepherd, Jr., Oklahoma City, of counsel, for defendant in error.
Plaintiffs, as parents and the sole and only heirs of Howard Gaines Howell, deceased, brought this action for the benefit of the heirs and next of kin of decedent to recover damages allegedly sustained by them as a result of the death of decedent, their unborn child, which they allege was caused by the negligence of defendant. The trial court sustained a demurrer to the petition on the ground that the petition failed to state a cause of action. Defendant concedes that the petition is good against a demurrer except for the ground that 'there is no right of action for wrongful death in one whose decedent is a foetus', or infant en ventre sa mere.
The subject of wrongful death of a foetus, or infant en ventre sa mere, has not previously been considered by this Court, and our decision in this case will be one of first impression.
Title 12 O.S.1951, § 1053, provides:
There being no administrator, the action is brought by the next of kin, which is permissible if the action is otherwise maintainable. Mid-Continent Petroleum Co. v. Allen, 110 Okl. 101, 236 P. 426.
The plaintiffs rely upon this statute and the rule announced in Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838, 10 A.L.R.2d 634. The defendant relies on the rule as applied in Drabbels v. Skelly Oil Co., 19...
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