Rainey v. Horn

Citation221 Miss. 269,72 So.2d 434
Decision Date17 May 1954
Docket NumberNo. 39060,39060
PartiesRAINEY et al. v. HORN.
CourtUnited States State Supreme Court of Mississippi

W. Arlington Jones, Currie & Currie, Hattiesburg, for appellants.

F. & J. O. Moss, Lucedale, for appellee.

GILLESPIE, Justice.

The appellants, L. L. Rainey, his wife, Mrs. Ivon Beatrice Rainey, and their four minor children, sued appellee in the Circuit Court of George County for the wrongful death of Mrs. Rainey's unborn child. The declaration, as amended, is based on Code Section 1453, the wrongful death statute. The trial in the lower court resulted in a hung jury, whereupon the court entered an order of mistrial and continued the case for further hearing. The appellee then filed a motion for judgment notwithstanding the mistrial verdict. The court sustained this motion on the ground that appellee was entitled to a peremptory instruction, and dismissed the suit.

This appeal presents two questions: (1) Does an action lie under Code Section 1453 for the negligent killing of an unborn child which was viable and capable of a separate and independent existence apart from the mother? (2) Was the proof of negligence sufficient to create a jury issue?

The first stated question is one of first impression in this State. We answer both questions affirmatively. We first consider the second question.

The facts are in sharp dispute. We state them most favorably to appellants for the purpose of determining whether they presented a jury issue on the question of negligence. It should be said in justice to the appellee, Dr. Horn, that he denied all the factual contentions of appellants.

Appellants live in a rural area of George County. Four children had previously been born to Mr. and Mrs. Rainey. She became pregnant with her fifth child. Mrs. Rainey consulted Dr. J. W. Horn, the appellee, who was about 72 years of age. Her pregnancy was normal. The new arrival was expected between Thanksgiving and Christmas. Mr. Rainey called Dr. Horn to come by and give Mrs. Rainey a check-up on December 6, as the time of the baby's arrival was thought near. On that date, at about 8 o'clock P.M., Dr. Horn went to the home of the appellants. Mrs. Rainey had a backache but she said she was not in labor. She had been up all day. The appellee examined her. Mrs. Rainey made coffee and served coffee and cake. Dr. Horn appeared nervous and gave Mrs. Rainey a pill and said, 'Maybe that will bring on the time.' Dr. Horn had Mrs. Rainey go to bed again for examination. Before he examined her, he put out chloroform. She was not having labor pains and her water had not broken. Dr. Horn put Mrs. Rainey to sleep. Up to this time the baby could be felt moving in her womb and was alive. Dr. Horn then used his hands apparently in an effort to get hold of the baby. Then he got his forceps and inserted them into Mrs. Rainey and pulled for some five minutes. Mrs. Rainey was bleeding. Dr. Horn then took off his shoes and got into bed with his feet braced against Mrs. Rainey's thighs and pulled with all his strength for a period estimated by witnesses from 15 to 40 minutes. Dr. Horn, Mrs. Rainey, and the bed were bloody. One witness, a midwife, told Dr. Horn he was killing the baby, but he did not answer. There was testimony that Dr. Horn acted as if he were under the influence of narcotics--that he acted abnormal. Mr. Rainey told Dr. Horn he wanted to get his wife to a hospital and Dr. Horn said, 'Do what you want to, I'm through.' Mrs. Rainey was thought by one of the witnesses to be dying. One witness, a sister of Mrs. Rainey, testified she stood beside the bed and she could feel no movement of the baby after the above occurrence.

At about midnigh, Mrs. Rainey was taken to a hospital where X-rays were made. The baby was shown by X-ray to be in the pelvis in a normal position. The baby was born naturally without use of instruments four hours after Mrs. Rainey got to the hospital. The baby was born dead; it was a full-term baby. It was bruised from head to foot. Another physician who arrived just before Mrs. Rainey was taken to the hospital was quoted, without objection or denial, that he 'had never seen anyone butchered up like that,' referring to Mrs. Rainey. Dr. Horn admitted taking Strychnine tablets for a weak condition. The theory of appellants' case was that Dr. Horn negligently tried to force the birth of the baby before Mrs. Rainey got into labor, and while abnormal from some cause, unnecessarily killed the baby by trying to force it with forceps.

Dr. Horn's defense was that when he examined Mrs. Rainey the last time that she had broken water, was partially dilated, and was in labor; that the left arm and shoulder and umbilicus cord were presenting outside Mrs. Rainey's body, and the baby was turned in such a way that it could not be born in that position. He testified that the umbilicus cord thus presented created an emergency; that the baby would die of strangulation in five minutes. He stated that he went to work to get the baby back in position by shoving it with his hands. At the same time, he stated he worked to get the cord back in so that pressure would be relieved and thus prevent strangulation of the baby. He testified that he got the cord back in and the baby was then limp; that he was unable to turn the baby to normal position. He testified that he then went to work to bring out the baby with forceps and get life in it.

Both parties used medical evidence. Most of appellants' case was based on lay witnesses. Two physicians testified as experts tending to support Dr. Horn. The presenting of the left arm, shoulder and umbilicus cord and the emergency thereby created, was the basis of Dr. Horn justifying his actions. Dr. Horn testified that these parts of the baby were into the outside world. Three witnesses categorically denied this fact.

The evidence presented these issues of fact: (1) Whether Mrs. Rainey was in labor prior to or at the time Dr. Horn attempted to force birth of the baby by use of forceps; (2) whether Mrs. Rainey had broken water, which means the breaking of the membrane in which an unborn foetus floats in liquid; (3) whether Dr. Horn was in full control of his mental and physical faculties, or was abnormal; (4) whether the baby's left arm, shoulder and umbilicus cord presented, creating an emergency; (5) whether Dr. Horn was negligent in the unnecessary use of force on the baby, and (6) whether Dr. Horn tried to force the baby's birth before nature brought on the labor pains and dilation of the cervix. These, at least, if not others, made a jury issue on the question of negligence. The appellee was not entitled to the peremptory instruction. The motion for judgment notwithstanding the mistrial verdict should not have been sustained.

When a physician undertakes to perform the duties of his profession, he impliedly warrants that he possesses and will use the requisite skill and care ordinarily possessed and used by others in his profession. But unsuccessful results of his treatment or action does not give rise to a presumption of negligence.

We now consider the question whether an action will lie under Code Section 1453 for the negligent killing of an unborn child which was viable and capable of a separate and independent existence apart from the mother. Under Lord Campbell's act, and by most of the statutes in the United States based thereon, including our Code Section 1453, it is essential to the maintenance of the action for death by wrongful act that the wrongful act be of such character as would have supported an action by the deceased for his injuries if he had survived. It is, therefore, appropriate to examine the cases dealing with the right to maintain an action for prenatal injuries by children who survived the injuries. The cases hereinafter considered include those where the action was brought by or on behalf of living children for damages resulting from negligent prenatal injuries, and cases brought by the next of kin under wrongful death statutes for the death of the child that survived birth but died from negligent prenatal injuries.

The earliest case dealing with this subject seems to be Dietrich v. Inhabitants of Northampton, 1884, 138 Mass. 14. In that case, the Court denied the right to maintain the action on the ground that no case had ever been decided allowing an action to be maintained by an infant that survived but was injured while in its mother's womb, and on the further ground that an unborn child is a part of its mother and any damage to it which is not too remote to be recovered at all is recoverable by the mother. This decision was followed in 1900 by the case of Allaire v. St. Luke's Hospital, 184 Ill. 359, 56 N.E. 638, 641, 48 L.R.A. 225, wherein a majority of the Illinois Court followed the Dietrich case. The Allaire case was thereafter for some decades one of the leading cases on the subject. In that case, Justice Boggs wrote a lengthy and strong dissenting opinion in which he said in part:

'In the case at bar the infant, when the injury was inflicted, had, as the declaration alleged, reached that advanced state of foetal life which would have, according to the experience of mankind, and according to the medical learning of the age, endowed it with such vitality and vigor, and with members and faculties so far complete and mature, that it could have maintained independent life, and the death of the mother would not have deprived it of life. It is but natural justice that such an infant, if born alive, should be allowed to maintain an action in the courts for injuries so wrongly committed upon its person while so in the womb of the mother. * * * If, in delivering a child, an attending physician, acting for a compensation, should wantonly or by actionable negligence injure the limbs of the infant, and thereby cause the child, although born alive and living, to be maimed and crippled in body or members, it would be abhorrent to every impulse of justice...

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    ...(1949) 229 Minn. 365, 38 N.W.2d 838; accord, Pehrson v. Kistner (1974) 301 Minn. 299, 222 N.W.2d 334.Mississippi: Rainey v. Horn (1954) 221 Miss. 269, 72 So.2d 434.Nevada: White v. Yup (1969) 85 Nev. 527, 458 P.2d 617.New Hampshire: Poliquin v. MacDonald (1957) 101 N.H. 104, 135 A.2d 249.Oh......
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