Plantation Pipe Line Co. v. Hornbuckle
| Decision Date | 19 January 1956 |
| Docket Number | No. 1,No. 35950,35950,1 |
| Citation | 91 S.E.2d 773,93 Ga.App. 391 |
| Parties | PLANTATION PIPE LINE COMPANY v. Jan Renee HORNBUCKLE, by Next Friend |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
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.
Moise, Post & Gardner, Atlanta, for plaintiff in error.
John L. Westmoreland, Sr., John L. Westmoreland, Jr., G. Ernest Tidwell, Atlanta, for defendant in error.
According to the allegations of the petition the injuries which damaged the plaintiff were inflicted on August 29, 1952, and the plaintiff was born on April 29, 1953. Under the allegations of the petition the injuries were necessarily inflicted before the plaintiff became quick in its mother's womb, the injuries having been inflicted before the fourth month of pregnancy. Steed v. State, 80 Ga.App. 360, 363, 56 S.E.2d 171; Biegun v. State, 206 Ga. 618, 627, 58 S.E.2d 149. Since there is no statute covering such a right of action as is here asserted, the common law as interpreted by the courts of this state control. The common law on this question has been clearly and explicitly declared by the Supreme Court of Georgia in Tucker v. Howard L. Carmichael & Sons, Inc., 208 Ga. 201, 65 S.E.2d 909, to be that an action lies in a born child when the injuries complained of occurred when the child was quick in its mother's womb. It is contended by the plaintiff in the trial court that the action will lie even if the injuries occurred before the plaintiff became quick if it later became quick and was born alive. This would be an almost irresistible argument if we were deciding for the first time what the common law would have been in such a case because the only plausible answer to such an argument seems to be that the cause of action would be difficult to support by decisive evidence. This answer, however, is no answer to whether a cause of action is stated but goes only to the question of the sufficiency of evidence to support a verdict as illustrated by cases too numerous to mention where it was impossible to support by evidence a cause of action held good as against general demurrer. In line with the ruling in the Tucker case are: Code §§ 26-1103, 26-1102, 27-2519. The common law did not regard an infant as in being from the time of conception with respect to its preservation as a...
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...refer to a Georgia case, Hornbuckle v. Plantation Pipe Line Company, 212 Ga. 504, 93 S.E.2d 727, reviewing Plantation Pipe Line Co. v. Hornbuckle, 93 Ga.App. 391, 392, 91 S.E.2d 773, in a somewhat similar situation wherein injuries were inflicted to the mother "before the plaintiff [a still......
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Hornbuckle v. Plantation Pipe Line Co.
...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......