Mallison v. Pomeroy

• Decision Date: 07 December 1955
• Citation: 291 P.2d 225,205 Or. 690
• Parties: Anita MALLISON, a minor, by Dorthie E. Mallison, her guardian ad litem, Respondent, v. Wayne L. POMEROY, Appellant.
• Court: Oregon Supreme Court

Page 225

291 P.2d 225

205 Or. 690

Anita MALLISON, a minor, by Dorthie E. Mallison, her guardian ad litem, Respondent, v. Wayne L. POMEROY, Appellant.

Supreme Court of Oregon.

Argued Nov. 16, 1955.

Decided Dec. 7, 1955.

Wm. C. Ralston and W. K. Phillips, Portland, argued the cause for appellant. With them on the brief was Leo Levenson, Portland.

Graham Walker, Portland, argued the cause for respondent. With him on the brief were Earle V. White, Jr., and Emerson U. Sims, Portland.

Before TOOZE, Acting C. J., and ROSSMAN, LUSK, BRAND, LATOURETTE and PERRY, JJ.

LATOURETTE, Justice.

The question posed is whether or not plaintiff has a cause of action for injuries sustained by her while she was a viable child in her mother's womb. The term 'viable child' means a child capable of an independent existence without the mother's womb.

The case arises out of injuries causing cerebral palsy, a condition commonly known as spastic, allegedly sustained by plaintiff on December 25, 1948, while she was an unborn child, her mother then being six months pregnant. Plaintiff's complaint is predicated upon the negligence of defendant when his car crashed into the rear of a car in which her mother was seated. Approximately ten days after the collision the mother bore twins, one of whom immediately died. Defendant appeals from a judgment in favor of plaintiff, the surviving child.

The question presented is one of first impression in this state. There are two divergent schools of thought on this subject. The mother case in this country which denied liability is Dietrich v. Inhabitants of Northampton, 1884, 138 Mass. 14, 52 Am.Rep. 242. The decision was primarily based on the proposition that until birth the child was a part of the mother.

This decision was followed by decisions in ten jurisdictions which are collated in 10 A.L.R.2d, page 1060. Among them are the following: Allaire v. St. Luke's Hospital 1900, 184 Ill. 359, 56 N.E. 638, 48 L.R.A. 225; Buel v. United Rys. 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; and Mays v. Weingarten, Ohio App., 1943, 82 N.E.2d 421. It is noteworthy that the highest courts of the above jurisdictions later overruled the earlier decisions and held for liability. See Williams v. Marion Rapid Transit, Inc., 1949, 152 Ohio St. 114, 87 N.E.2d 334, 10 A.L.R.2d 1051; Woods v. Lancet, 1951, 303 N.Y. 349, 102 N.E.2d 691, 27 A.L.R.2d 1250; Amann v. Faidy, 1953, 415 Ill. 422, 114 N.E.2d 412; Steggall v. Morris, 1953, 363 Mo. 1224, 258 S.W.2d 577.

We call attention to the further following cases adhering to the modern view and which allow recovery: Verkennes v. Corniea, 1949, 229 Minn. 365, 38 N.W.2d 838, 10 A.L.R.2d 634; Tucker v. Howard L. Carmichael & Sons Inc., 1951, 208 Ga. 201, 65 S.E.2d 909; Damasiewicz v. Gorsuch, 1951, 197 Md. 417, 79 A.2d 550; Rainey v. Horn, 1954, 221 Miss. 269, 72 So.2d 434. It is significant that the Massachusetts Supreme Court in the case of Bliss v. Passanesi, 1950, 326 Mass. 461, 95 N.E.2d 206, 207, when the question was again before it, stated: 'We do not intimate what our decision would be if the question were presented for the first time.' From the foregoing it is thus seen that a majority of the jurisdictions considering the subject favor a right of action for prenatal injuries.

It would serve no useful purpose and would unnecessarily prolong this opinion if we reviewed the numerous cases dealing with the subject. A mere perusal of the above listed cases will disclose that the courts have dealt extensively with every phase of the question being considered. We do wish, however, to refer to several cases which, in our opinion, are outstanding and merit consideration. In Amann v. Faidy, supra [415 Ill. 422, 114 N.E.2d 415], Mr. Justice Schaefer, speaking for the Illinois Supreme Court, wrote as follows:

'As they emerge from the many opinions which have now considered the problem, the chief grounds urged in support of the rule denying a viable child a right of action to recover for prenatal injuries have been (1) the lack of precedent; (2) the difficulty of determining the existence of a causal relation between a prenatal injury and the death or the condition of the child and the consequent possibility of fictitious claims; (3) the absence of a duty to the unborn child because it is thought to have no separate being apart from its mother. * * *

'Principal reasons advanced in support of allowing recovery where the injuries occur when the child is viable are: (1) and unborn viable child, being capable of independent physical existence, should be regarded as a separate entity from the mother; (2) the law recognizes the separate existence of an unborn child for the purpose of protecting his property rights and to protect him against criminal conduct; (3) a wrong is inflicted for which there is no remedy unless there is recognition of the legal right of a child to commence life unimpaired by physical or mental defects caused by the negligence of others while it was a viable child en ventre sa mere; and (4) lack of precedent should not bar recovery where a wrong has been committed.'

He then directs attention to the opinion of Mr. Justice Holmes in the case of Dietrich v. Inhabitants of Northampton, supra, and states:

'Turning then to the reasons which have prompted the denial of recovery, we consider first the alleged lack of common-law precedent. It has been said that Justice Holmes, unable to find any precedent for the action for prenatal injuries, believed that the common law afforded no remedy, whereas a more accurate statement, according to Salmond, Torts, 346 (10th Ed., Stallybrass, 1945), would have been that there was no English authority on either side of the question.'

We call attention to the fact that this case overruled an earlier Illinois Supreme Court decision in the case of Allaire v. St. Luke's Hospital, supra.

Reading further from Mr. Justice Schaefer's opinion, we quote:

'Upon a reappraisal of the question, we conclude that the reasons which have been advanced in support of the doctrine of nonliability fail to carry conviction. * * *'

We next quote from the opinion of Mr. Chief Justice Duckworth of the Supreme Court of Georgia, in the case of Tucker v. Howard L. Carmichael & Sons, Inc., supra [208 Ga. 201, 65 S.E.2d 910], as follows:

'Thus it is seen that Blackstone says that, in contemplation of the common law, life begins when the child is able to stir in the mother's womb. It can have a legacy, can own an estate, and a guardian can be assigned to it. It cannot seriously be denied that the purpose of the common law in allowing the appointment of a guardian for the unborn child is to make available processes of the law for the protection and preservation of the properties belonging to the child. There is nothing in the common law to indicate that it would withhold from such a child its processes for the purpose of protecting and preserving the person as well as the property of such child. It would therefore seem to us to be an unwarranted reflection upon the common law itself to attirbute to it a greater concern for the protection of property than for the protection of the person. * * *

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'* * * If the killing of the unborn child is regarded by the law as being sufficient injury to society to justify taking the life of the...