Keyes v. Construction Service, Inc.

• Decision Date: 04 April 1960
• Citation: 165 N.E.2d 912,340 Mass. 633
• Parties: Zella KEYES, Administratrix, v. CONSTRUCTION SERVICE, INC. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 912

165 N.E.2d 912

340 Mass. 633

Zella KEYES, Administratrix, v. CONSTRUCTION SERVICE, INC. et al.

Supreme Judicial Court of Massachusetts, Hampden.

Argued Sept. 23, 1959.

Decided April 4, 1960.

William A. Godfrey, Springfield, for plaintiff.

George W. Leary, Springfield, for defendants.

Before WILKINS, C. J., and SPALDING, WILLIAMS, COUNIHAN, WHITTEMORE, and CUTTER, JJ.

WILLIAMS, Justice.

The plaintiff, administratrix of the estate of one Duncan Reed, appeals from an order of the Superior Court sustaining the defendants' demurrer to her amended declaration in which it is alleged that while her intestate was an existing viable child in his mother's womb he received bodily injury in a collision of automobiles, 'causing him to be born prematurely, and which said bodily injuries resulted in his death.' We are asked to rexamine previous decisions of this court and again decide whether a child or his legal representative may recover in an action of tort for prenatal injuries caused by the negligence of a third party who was not the child's mother.

Our earliest decision was in 1884, Dietrich v. Inhabitants of Northampton, 138 Mass. 14, where a ruling of the trial court that the action could not be maintained was upheld on exceptions. In that case it appeared that the mother, who was between four and five months advanced in pregnancy, was caused to fall by a highway defect and the fall brought on a miscarriage. It was said in an opinion by Holmes, J., that the child, although not directly injured unless by a communication of the shock to the mother, was too little advanced in foetal life to survive its premature birth, notwithstanding there was evidence of motion in the limbs for ten or fifteen minutes. The decision was cited in practically all subsequent cases respecting the right to recover for prenatal injury and until recently has been generally followed.

In Bliss v. Passanesi, 326 Mass. 461, 95 N.E.2d 206, decided in 1950, we sustained a demurrer to a declaration by an administrator in an action of tort alleging that while his intestate was 'an existing viable child in her mother's womb,' the mother fell on a defective stairway of the defendant and immediately thereafter 'had severe pains which continued until the * * * intestate was born prematurely, and in consequence of the injuries received * * * died.' After citing the prevalent cases bearing upon the point at issue, most of which followed the Dietrich decision, we said that, conceding the strength of arguments to the contrary, the Dietrich case 'is still supported by the great weight of authority in other jurisdictions' and 'we are not inclined to overrule' it (326 Mass. at page 463, 95 N.E.2d at page 207).

In Cavanaugh v. First National Stores, Inc., 329 Mass. 179, 180-181, 107 N.E.2d 307, 308, decided in 1952, a child brought an action by his next friend alleging in his declaration that on December 25, 1945, 'he was a living entity, existing as a developing child, quick with life and viable in the womb of his mother * * * who then was pregnant with him for six months'; that his mother purchased and ate unfit turkey supplied by the defendant; that as a result she became sick and was caused next day to have a premature childbirth; and that the plaintiff 'was born blind and * * * otherwise not fully, normally and naturally developed.' On appeal from an order of the trial court sustaining a demurrer, we entered judgment for the defendant and after citing all cases which had been brought to our attention and Restatement: Torts, § 869, said 'Within recent years a body of contrary authority [to the Dietrich case] has been built up, allowing recovery by a child for prenatal injury. * * * We are not prepared to overrule our earlier decisions, which began nearly seventy years ago.'

Since the decisions in the Bliss and Cavanaugh cases the distinct trend of judicial opinion has been to allow recovery in cases of prenatal injuries caused by negligence. This is shown by the following cases: Amann v. Faidy, 1953, 415 Ill. 422, 114 N.E.2d 412; Steggall v. Morris, 1953, 363 Mo. 1224, 258 S.W.2d 577; Rainey v. Horn, 1954, 221 Miss. 269, 72 So.2d 434; Tursi v. New England Windsor Co., 1955, 19 Conn.Sup. 242, 111 A.2d 14; Mitchell v. Couch, Ky.1955, 285 S.W.2d 901; Mallison v. Pomeroy, 1955, 205 Or. 690, 291 P.2d 225; Worgan v. Greggo & Ferrara, Inc., 1956, 11 Terry 258, 50 Del. 258, 128 A.2d 557; Poliquin v. MacDonald, 1957, 101 N.H. 104, 135 A.2d 249; Smith v. Brennan, 1960, 31 N.J. 353, 157 A.2d 497. It is significant that the decisions in the above Missouri, Illinois and New Jersey cases were reversals of earlier decisions to the contrary.

Recent decisions against recovery are found in Drabbels v. Skelly Oil Co., 1951, 155 Neb. 17, 50 N.W.2d 229, Howell v. Rushing, Okl.1953, 261 P.2d 217, West v. McCoy, 1958, 233 S.C. 369, 105 S.E.2d 88, and Hogan v. McDaniel Tenn.1958, 319 S.W.2d 221.

Reasons generally advanced for recognizing a child's right of action for prenatal injury are: Natural justice demands recognition of a legal right of a child to begin life unimpaired by physical or mental defects resulting from the injury caused by the negligence of another. A manifest wrong should not go without redress. Since the law protects an unborn child in the descent and devolution of property whenever it would be for the benefit of the child and in the enforcement of criminal law, the unborn child is regarded as a legal entity; therefore by analogy the law should recognize the right of an unborn child not to be injured tortiously by another.

These reasons are urged for...