Porter v. Lassiter
| Decision Date | 18 February 1955 |
| Docket Number | No. 35484,No. 2,35484,2 |
| Citation | 91 Ga.App. 712,87 S.E.2d 100 |
| Parties | W. A. PORTER v. Betty Jean LASSITER |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The court did not err in overruling the demurrers to the petition, for the reasons given in the body of the opinion.
The present case is before this court on a bill of exceptions by W. A. Porter, individually and trading as W. A. Porter Trucking Company (hereinafter called the defendant), to a judgment of the Superior Court of Chatham County, Georgia, overruling his general demurrer to a petition filed by Mrs Betty Jean Lassiter (hereinafter called the plaintiff), and to a judgment of the Superior Court of Chatham County overruling the renewal of his general demurrers and his additional general demurrers filed to the amended petition of the plaintiff.
The plaintiff filed in the Superior Court of Chatham County, Georgia, her petition seeking damages against the defendant. In her petition, the plaintiff set forth that the defendant, through his agent, was operating a truck on certain streets in the City of Savannah on September 8, 1953, and the truck collided with the automobile in which the plaintiff was a passenger; that the plaintiff was thrown into the rear of the front seat of the automobile in which she was riding, and that in the collision she struck other parts of the vehicle. At the time this accident occurred, it is alleged that the plaintiff was carrying an unborn baby and had undergone normal pregnancy up until the time of the accident. She was carried to a hospital in Savannah where she received emergency treatment. On December 9, 1953, Mrs. Lassiter miscarried and aborted a four and one-half months' old baby. The baby was born dead. After the death of the child, surgery was performed on the plaintiff and the placenta was removed. This placenta, upon being examined, showed an area of previous pathology. It is claimed that the accident in which the plaintiff was involved resulted in an injury to the placenta, or afterbirth, which in turn caused the death of the child. The petition then alleges a number of grounds of negligence on the part of the defendant. The plaintiff asks for a judgment against the defendant in the amount of 'One Hundred Thousand Dollars for the death of her child.'
Counsel for both parties agree that the above is a substantial statement of the necessary facts in the case.
The judgment on the special grounds of the demurrers are not argued and are, therefore, considered as abandoned.
Pierce & Ranitz, Edward H. Lee, Savannah, for plaintiff in error.
Kennedy & Sognier, Savannah, for defendant in error.
The question here to be determined is whether or not, under the allegations of the petition, the plaintiff is entitled to recover the full value 'for the death of her child' when the death is caused by injury prior to birth. Both counsel for the plaintiff and counsel for the defendant cite many cases pro and con concerning the issue. We have reviewed them as called to our attention by both parties. The Judge of the Superior Court of Chatham County in passing on the demurrers evidently put much time and thought in the judgment overruling them. We cannot improve on it as it was set out, and therefore set out his judgment herewith, and follow it because we think it is eminently correct in every respect concerning the petition and the demurrers. It reads:
old bady was aborted. The baby was dead upon birth. The death was attributed to the failure of the placenta or after-birth to follow the child as is necessary.
'Upon being examined the placenta showed an area of previous pathology. The accident above mentioned with the resulting injury to the placenta or after-birth, is alleged to have caused the untimely and regrettable death of the child.
'According to the allegations of the petition it appears that Mrs. Lassiter was 1 1/2 months pregnant at the time of the accident. The miscarriage and death of the child occurred on December 9, 1953, and at that time she was 4 1/2 months pregnant.
'The main question in this case is whether or not the plaintiff may sue for the homicide of a child in ventra sa mere, and to what extent an unborn child must be developed before a mother can sue for the value of the life of her child.
'The suit must be based upon the acts of 1952, p. 54, Code, section 105-1307, Supp., as follows: * * *'
'So far as the question under consideration is concerned, the determination of the meaning of the word 'child' as used in this section is a necessary element.
'A parent could not recover for the homicide of an unborn child, or an infant, in Georgia, until the law, the act of 1952 (Georgia Laws 1952, p. 54) was passed. The previous law required that the child be able to contribute to the support of the parent.
'Decisions from other states are in conflict on the question of when a child 'in ventra sa mere' should be considered a 'child'.
'Some decisions consider that upon the formation of the foetus by conception, the foetus is then a child. Others, including Georgia, have held that a foetus becomes a child when it is 'quick' or capable of moving in its mother's womb. Others hold that it becomes a child when it is 'viable', capable of life and organic development independent of its contact with the mother. And others hold that the foetus does not become a child until it is...
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