Mitchell v. Couch

• Decision Date: 02 December 1955
• Citation: 285 S.W.2d 901
• Parties: Lester MITCHELL, Administrator of Infant Mitchell, Deceased, Appellant, v. Doyle COUCH, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 901

285 S.W.2d 901

Lester MITCHELL, Administrator of Infant Mitchell, Deceased, Appellant, v. Doyle COUCH, Appellee.

Court of Appeals of Kentucky.

Dec. 2, 1955.

Isaac Turner, Hyden, for appellant.

Brown & Bird, London, for appellee.

STEWART, Chief Justice.

This is an action wherein damages are sought by the administrator for the wrongful death of an unnamed infant whose decease was alleged to have been solely caused by a prenatal injury. The lower court, after a pre-trial conference, sustained the motion of appellee, Doyle Couch, to dismiss the complaint for the reason that it failed to state a claim upon which relief may be granted. This appeal is from the order of dismissal entered.

The facts in this case, set forth by the complaint and by one deposition, namely, that of Doctor Ernest A. Golia, are: On June 27, 1953, Lester Mitchell, accompanied by his wife, Gracie, was driving his one-half-ton pickup truck on Highway No. 80 in Leslie County in the direction of Wooten. At or about the hour of 2:40 p. m., after Mitchell had just crossed over a creek by traversing what is locally known as Cutshin bridge on this highway, he averred Couch, without giving any warning, approached so near him in a Cadillac car Couch was operating at a rapid, careless and reckless rate of speed that he, Mitchell was forced to drive his truck into the ditch line to his right in order to avoid a collision. As a result of this mishap, Mitchell's truck was completely demolished, he was severely injured and his wife, Gracie, was fatally hurt.

The record further discloses Mitchell had, prior to the accident, taken his wife to the hospital at Hyden, she being in the last stage of pregnancy and believing she was due to give birth to a child, but it developed she had been found not ready to be confined. She was on her way back home to await its delivery, riding in the front seat with Mitchell, when the latter's truck was wrecked and Mitchell and she were injured. Soon afterwards, Gracie was transported to Mount Mary Hospital at Hazard for treatment for her injuries, and while there she was delivered of a baby boy on June 29, 1953, which was born dead. Gracie herself died immediately thereafter.

Doctor Golia, who attended Gracie the whole time she was at Mount Mary Hospital and who was introduced as a witness for Couch, testified she had been very seriously injured and was in a state of shock on the occasion she was first admitted to the hospital. She had gradually improved but when she went into labor she was still in such a grave condition that she was unable to survive the added strain childbirth placed upon her. He also stated he had listened to her abdomen several hours after she came in as a patient, in an attempt to hear the child's heart sounds, and none could be detected. According to him, there were no direct, visible marks of injury on the dead infant's body. This witness did not venture an opinion as to how the infant came to its death.

The complaint alleged the child died as a result of injuries suffered by it and produced by Couch's negligence while in the womb of its mother. Mitchell, who qualified as administrator, sought damages therefor in the sum of $20,000. The first paragraph of Couch's answer questioned whether an action may be maintained in this state for the wrongful death of an infant arising out of prenatal injuries. The lower court adjudged the first paragraph constituted a complete defense to this action. The trial judge was of the opinion that no provision has been made by any statute of Kentucky for a recovery based upon the wrongful death of a child originating from injuries sustained prior to its birth.

It is argued by Couch in this appeal that any right to prosecute this cause must be obtained by and through Section 241 of the Constitution of Kentucky and KRS 411.130, enacted pursuant thereto, since at common law there is no right to recover damages in a death case.

Section 241 reads in part: 'Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be recovered for such death, from the corporations and persons so causing the same. * * *'

The pertinent portion of KRS 411.130, enacted to carry out the purpose of this constitutional provision, states: '(1) Whenever the death of a person results from an injury inflicted by the negligence or wrongful act of another, damages may be recovered for the death from the person who caused it, or whose agent or servant caused it. If the act was willful or the negligence gross, punitive damages may be recovered. The action shall be prosecuted by the personal representative of the deceased.'

The precise issue before us is whether an administrator may recover for the death of a child caused by injuries received en ventre sa mere through the negligence of another. In interpreting the language of Section 241 of the Constitution and KRS 411.130, above quoted, the difficulty arises in determining whether a child en ventre sa mere is a 'person' within the meaning of these two provisions. The question presented has not been passed upon by any decision of this forum, but it has received much consideration in late years in cases before the courts of other states and in reviews in law journals.

Beginning with the early case of Dietrich v. Inhabitants of Northampton, 1884, 138 Mass. 14, 52 Am.Rep. 242, it was held no action would lie for the death of a child resulting from injuries received by a mother who slipped upon a defect in a highway of the defendant town. The fall caused a miscarriage and the child was too little advanced to endure its premature birth, although there was some evidence indicating it lived ten or fifteen minutes. The court pitched its decision upon the grounds that no case had ever allowed a a surviving infant to recover for injuries received while in its mother's womb and that, as an unborn child is a part of the mother and has no separate existence, there is no duty of care owed it. Adhering to this Massachusetts holding in principle the subsequent cases advanced further reasons for rejecting causes of action founded on before-birth traumas. These were the presence of inherent difficulties in proving a causal connection between the act of negligence and the resultant injury and the fear of opening the door to fictitious claims which might be trumped-up by false testimony. See Allaire v. St. Luke's Hospital, 1900, 184 Ill. 359, 56 N.E. 638, 48 L.R.A. 225; Gorman v. Budlong, 1901, 23 R.I. 169, 49 A. 704, 55 L.R.A. 118; Buel 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; Magnolia Coca-Cola Bottling Co. v. Jordan, 1935, 124 Tex. 347, 78 S.W.2d 944, 97 A.L.R. 1513; Drabbels v. Skelly Oil Co., 1951, 155 Neb. 17, 50 N.W.2d 229; Amann v. Faidy, 1952, 348 Ill.App. 37, 107 N.E.2d 868.

However, since 1921 numerous and impressive precedents have been developed in favor of allowing a right of action for prenatal injuries, either under general tort law or under applicable wrongful death statutes. Springing from the dissenting opinion of Mr. Justice Boggs in the case of Allaire v. St. Luke's Hospital, supra, several states have forged ahead by adopting the so-called 'viability theory' which conditions the right of action upon a sufficient showing that the child when injured by tort was capable of living outside its mother's uterus. In defining viability, a federal district court in Bonbrest v. Kotz, D.C.1946, 65 F.Supp. 138, 141, made this explanatory statement: 'It (the child), has, if viable, its own bodily form and members, manifests all of the anatomical characteristics of individuality, possesses its own circulatory, vascular and excretory systems and is capable now of being ushered into the visible world.'

Relying upon the view that a viable child is in fact a separate person, many leading American courts have recognized the right to maintain an action for the wrongful death of an unborn child where its capacity for an independent existence was established. See Cooper v. Blanck, La.App.1923, 39 So.2d 352; Verkennes v. Corniea, 1949, 229 Minn. 365...