Prescott v. Robinson

• Decision Date: 03 March 1908
• Citation: 69 A. 522,74 N.H. 460
• Parties: PRESCOTT v. ROBINSON.
• Court: New Hampshire Supreme Court

69 A. 522

74 N.H. 460

PRESCOTT

v. ROBINSON.

Supreme Court of New Hampshire. Hillsborough.

March 3, 1908.

Exceptions from Superior Court, Hillsborough County; Peaslee, Judge.

Case for negligence by Ethel L. Prescott against Percival M. Robinson. Case transferred from the trial term on defendant's exceptions to the denying of his demurrer to the declaration, and of his motion that parts thereof be stricken. Case discharged.

The declaration alleged that the defendant so negligently managed an automobile and ran the same at such excessive speed "that by reason thereof said automobile was propelled with great force upon and against the carriage in which said plaintiff was riding, crushing and wrecking said carriage, and hurling said plaintiff, who was then pregnant, from her seat in said carriage to the ground, whereby she was severely injured in and upon her head, body, abdomen, back, and limbs [and was injured internally so that the child, to which she later gave birth, and of which she was at the time of said injury pregnant, was born deformed, disfigured, and diseased, and has so continued from thence hitherto, all by reason of defendant's said negligence], and said plaintiff was also bruised, lamed, and injured externally and internally, and her nervous system shocked and injured [and she suffered and endured great mental distress after said injuries during her pregnancy on account of her dread of the effect of said injuries upon herself and her unborn child, and since the birth of said child she has suffered and will continue to suffer in mind and body by reason of said injuries, both as above set forth and by reason of the deformity and diseased condition of said child]. Whereby a right of action in favor of said plaintiff against said defendant has accrued for all her past, present, and future injuries, pain, and suffering in mind and body, and inability to labor, and all the injuries, pain, and suffering, and inability to labor of said child." The defendant demurred to the declaration, and moved that the parts inclosed in brackets be stricken out. The demurrer and motion were denied, and the defendant excepted.

Burnham, Brown, Jones & Warren, for plaintiff. Branch & Branch, for defendant.

WALKER, J. The demurrer and motion present the question whether under the allegations of the declaration the plaintiff is entitled to recover damages for her mental distress due to her fear or apprehension before the birth of the child that it would be deformed in consequence of the defendant's negligent act, and whether her mental suffering since the birth of the child and her prospective anxiety and disappointment on account of its deformity and diseased condition can be considered by the jury as elements of damage recoverable in this action. Assuming that she suffered mental distress, not only in regard to the effect of the accident upon her person, but in regard to its effect upon the unborn child, it cannot be doubted that it was proximately caused by the alleged negligence of the defendant. It was a natural result reasonably to be apprehended under the circumstances. The fact that the defendant was ignorant of her condition does not lessen his liability for the natural consequences of his negligent act. Chicago, etc., Ry. v. Hunerberg, 16 Ill. App. 387; Brown v. Railway, 54 Wis. 342, 11 N. W. 356, 911, 41 Am. Rep. 41; Purcell v. Railway, 48 Minn. 134, 50 N. W. 1034, 16 L. R. A. 203.

But it is contended that, while she may be entitled to recover for distress of mind due simply to her fear of the results of the accident to her person, her apprehension that the child might be deformed thereby is too remote or fanciful to be deemed in law an element of damage, although proximately caused by the defendant's negligent act. If a fœtus is deemed to constitute a part of the mother's person, an injury to it is plainly an injury to her, as much as an injury to her hand or arm would be. And it would seem to follow that she has as much right not to be harmed in the one respect as in the other. A denial of that proposition would be equivalent to an assertion that the law protects persons in the use and enjoyment of some parts of their physical organisms, but not of all parts thereof. Such a conclusion rests upon no logical basis, and is supported by no legal principle. If in consequence of a blow inflicted upon his person a man sustains an injury which may reasonably be expected to produce a deformity or to impair his health, his right to recover damages of the negligent defendant for his mental suffering occasioned by the prospect of such a result is a recognized and enforceable right. In Walker v. Railroad, 71 N. H. 271, 273, 51 Atl. 918, 919, this principle was applied in the following language: "There was evidence that the plaintiff was suffering from partial mental disability. If as a result of mental disability induced by the defendant's fault the plaintiff suffered from apprehension of insanity, such suffering was an element of her damage." Brush Electric Co. v. Simonsohn, 107 Ga. 70, 32 S. E. 902; Sherwood v. Railway, 82 Mich. 374, 383, 46 N. W. 773; Schmitz v. Railway, 119 Mo. 256, 277, 24 S. W. 472, 23 L. R. A. 250. The fact that one of the results of the alleged injury in this case was the deformity of the fœtus, which became the child's misfortune upon its birth, does not prove that no right of the plaintiff was invaded in this regard for which damages are allowable. On the contrary, it shows that her natural right to the normal action of her physical organs in the growth and development of the fœtus was seriously infringed. Alabama, etc., R. R. v. Hill, 93 Ala. 514, 9 South. 722, 30 Am. St. Rep. 65. Her ability to be delivered of a normal and healthy child was jeopardized, and her grief and apprehension before the birth on account of what the probable or not unreasonable effect would be upon the child is not a remote consequence of the alleged negligence of the defendant. It was her right to produce a healthy child; and, if by the defendant's negligence her enjoyment of that right was diminished or violated, her mental distress for the unnatural result to be expected was an element of damage for which she should be compensated, as well as her disappointment at the birth of a deformed child.

In this view of the case it is unnecessary to consider or determine what, if any, rights a child in ventre sa mere has for injuries received by it, which render its existence after birth painful and burdensome. Whether it may or may not, after birth, maintain an action on that account (Dietrich v. Northampton, 138 Mass. 14, 52 Am. Rep. 242; Gorman v. Budlong, 23 R. I. 169, 49 Atl. 704, 55 L. R. A. 118, 91 Am. St. Rep. 629; Marsellis v. Thalhimer, 2 Paige [N. Y.] 35, 40, 21 Am. Dec. 66; Harper v. Archer, 4 Smedes & M. [Miss.] 99, 43 Am. Dec. 472; Allaire v. Hospital, 184 Ill. 359, 368, 56 N. E. 638, 48 L. R. A. 225, 75 Am. St. Rep. 176; Earl of Bedford's Case, 7 Co. 7b; Trower v. Butts, 1 Sim. & St. 181; Wallis v. Hodson, 2 Atk. 115, 117; Thellusson v. Woodford, 4 Ves. Jr. 227, 322; Doe v. Clarke, 2 H. Bl. 399; Scruby v. Payne, 34 L. T. 845; The George & Richard, L. R. 3 Adm. 466; Walker v. Railway, 28 L. R. Ir. 69; 2 Witt. & Beck Med. Jur. 150-152, 159-161), is immaterial in this case. The mother's right to the damages she suffers for the defendant's wrongful act in causing her to bring forth a misshapen and sickly child, instead of a well developed and healthy one, does not depend on the question whether at the time of the injury the fœtus is deemed in law a person, or whether after birth it may maintain an action to recover for the wrong done to it before its birth. She cannot recover in her own right for the child's injuries for which, if it were deemed a person in law, it would have a right of action; and, if it is deemed not to be a person at the time of the injury, but pars viscerum matris (Earl of Bedford's Case, 7 Co. 7b), she suffers no damage for its deformity merely, that is, the fact alone that it is deformed is a misfortune to the child, for which she is not entitled to damages, unless it causes her special physical pain and suffering. Such damages pertain to the child alone. The mother is no more entitled to them than the father is. Upon the birth of the child the physical consequences of the injury to it become effective. From the time of the injury to the time of the birth the mother suffers no physical damage merely...