Sinkler v. Kneale

Decision Date26 September 1960
Citation164 A.2d 93,401 Pa. 267
PartiesRebecca Montgomery SINKLER and Emilie Beauveau Sinkler, minors, by and through their father and natural guardian, Charles Sinkler, II, and Charles Sinkler, II, in his own right, and Nancy Dallam Sinkler, v. Thomas J. KNEALE, also known as Thomas J. Kneale, Jr. Appeal of Rebecca Montgomery SINKLER.
CourtPennsylvania Supreme Court

G. Clinton Fogwell, Jr., Reilly & Fogwell, Albert W. Laisy, West Chester, for appellant.

Stively & Mitman, William H. Mitman, West Chester, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R. JONES, COHEN, BOK, and EAGEN, JJ.

BOK, Justice.

Preliminary objections were filed and sustained to a complaint by a child, per her father as natural guardian, alleging that as the result of prepartum injuries she was born Mongoloid.

The suit embraces four plaintiffs--father, mother, thirteen-year-old daughter, and the Mongoloid child. The mother was driving her car with her daughter as passenger and at the time was one month pregnant with the infant plaintiff. She and the older daughter were injured when defendant's car, according to the complaint, negligently struck the mother's car in the rear.

The claims of the three older persons are pending, the Mongoloid infant being the sole appellant after her right of action was denied her.

The lower court felt bound by Berlin v. J. C. Penney Co., 1940, 339 Pa. 547, 16 A.2d 28. This is a short opinion of less than a page and relies on 4 Restatement, Torts, Sec. 869, and on four cases, each from a foreign jurisdiction: Drobner v. Peters, 1921, 232 N.Y. 220, 133 N.E. 567, 20 A.L.R. 1503; Dietrich v. Inhabitants of Northampton, 1884, 138 Mass. 14, 52 Am.Rep. 242; Ryan v. Public Service Coordinated Transport, 1940, 18 N.J.Misc. 429, 14 A.2d 52; Allaire v. St. Luke's Hosp., 1900, 184 Ill. 359, 56 N.E. 638, 48 L.R.A. 225.

The Berlin case was the first appellate expression in Pennsylvania on the subject of injury sustained en ventra sa mere but there have been four lower court decisions, one before and three after Berlin: Kine v. Zuckerman, 1924, 4 Pa.Dist. & Co.R. 227; Jacketti v. Pottstown Rapid Transit Co., 1950, 67 Montg.Co.Law Repr. 37; Rimpa v. Sears Roebuck & Co., 1953, 37 Erie 267; and VonElbe v. Studebaker-Packard Corp., 1958, 15 Pa.Dist. & Co.R.2d 635. The Kind and VonElbe cases upheld the right of action, while the Jacketti and Rimpa cases followed Berlin although in Rimpa the court said that it would in all likelihood have taken the other view if the question had been open.

By now all four jurisdictions on which Berlin relied have reversed themselves and at present uphold the right of action when the child is born alive: Woods v. Lancet, 1951, 303 N.Y. 349, 102 N.E.2d 691, 27 A.L.R.2d 1250; Amann v. Faidy, 1953, 415 Ill. 422, 114 N.E.2d 412; Smith v. Brennan and Galbraiths, 1960, 31 N.J. 353, 157 A.2d 497; and Keyes v. Construction Service, Inc., Mass.1960, 165 N.E.2d 912.

The parent case, both in this country and in England, is the Massachusetts decision first above cited, Dietrich v. Inhabitants of Northampton, where Judge Holmes in 1884 denied the right of action. He not only found no common law doctrine against it but felt it necessary to find some opposition to a statement by Lord Coke in the criminal law which is repeated by Blackstone at Book IV, p. 198:

'To kill a child in its mother's womb is now no murder, but a great misprison: but if the child be born alive and dieth by reason of the potion or bruises it received in the womb, it is murder in such as administered or gave them.'

Even if the criminal law is faint authority for a tort, the foregoing must show at least that the common law offers no bar to the suit. Judge Holmes's real point d'appui for decision was that the unborn child was part of its mother. This was undoubtedly the medical view accepted by the law at the time, and it is precisely the view that has altered since.

The case has been effectively overruled by Keyes v. Construction Service, Inc., supra, 165 N.E.2d 912, 915, decided April 4, 1960, where the Supreme Judicial Court of Massachusetts said:

'We think it advisable that in respect to the subject of prenatal injury the law of this Commonwealth should be in general in harmony with that of the large and growing proportion of the other States * * *. There is no need to reverse the Dietrich decision which doubtless was right when rendered but we recognize that in view of modern precedent its application should be limited to cases where the facts are essentially the same.'

The facts in Dietrich were that the child was born prematurely, after four to five months from conception, when its mother fell on a defective highway and miscarried.

The case of Smith v. Brennan & Galbraiths, supra (31 N.J. 353, 157 A.2d 497), decided January 11, 1960, is a compendium of the present stance of the law. Before 1949 twelve states, including Pennsylvania and the four whose cases are cited above in Berlin, denied the right of action, and two upheld it: California, under a statute, and Louisiana, under its civil code. Since 1949 seven states have overruled former decisions denying recovery, including the four above cited in Berlin and nine states, dealing with the question for the first time, have upheld recovery. The eighteen states that now allow recovery are: California, Scott v. McPheeters, 1939, 33 Cal.App.2d 626, 92 P.2d 678, 93 P.2d 562; Connecticut, Prates v. Sears, Roebuck & Co., 1955, 19 Conn.Sup. 487, 118 A.2d 633; Delaware, Worgan v. Greggo & Ferrari, Inc., 1956, 11 Terry 258, 50 Del. 258, 128 A.2d 557; Georgia, Tucker v. Howard L. Carmichael & Sons, 1951, 208 Ga. 201, 65 S.E.2d 909; Illinois, Amann v. Faidy, 1953, 415 Ill. 422, 114 N.E.2d 412; Kentucky, Mitchell v. Couch, Ky.Ct.App., 1955, 285 S.W.2d 901; Louisiana, Cooper v. Blanck, La.App.1923, 39 So.2d 352; Maryland, Damasiewicz v. Gorsuch, 1951, 197 Md. 417, 79 A.2d 550; Massachusetts, Keyes v. Construction Service, Inc., Mass.1960, 165 N.E.2d 912; Minnesota, Verkennes v. Corniea, 1949, 229 Minn. 365, 38 N.W.2d 838, 10 A.L.R.2d 634; Mississippi, Rainey v. Horn, 1954, 221 Miss. 269, 72 So.2d 434; Missouri, Steggall v. Morris, 1953, 363 Mo. 1224, 258 S.W.2d 577; New Hampshire, Poliquin v. MacDonald, 1957, 101 N.H. 104, 135 A.2d 249; New Jersey, Smith v. Brennan & Galbraiths, 1960, 31 N.J. 353, 157 A.2d 497; New York Woods v. Lancet, 1951, 303 N.Y. 349, 102 N.E.2d 691, 27 A.L.R.2d 1250; Ohio, Williams v. Marion Rapid Transit Inc., 1949, 152 Ohio St. 114, 87 N.E.2d 334, 10 A.L.R.2d 1051; Oregon, Mallison v. Pomeroy, 1955, 205 Or. 690, 291 P.2d 225; South Carolina, Hall v. Murphy, S.C.1960, 113 S.E.2d 790.

At present eight states deny recovery. In two the courts note the recent trend and strongly indicate that reversal is likely. These are Michigan, in LaBlue v. Specker, 1960, 358 Mich. 558, 100 N.W.2d 445, and Wisconsin, in Puhl v. Milwaukee Auto Ins. Co., 1960, 8 Wis.2d 343, 99 N.W.2d 163. In two other of these states the courts expressly said that they made no determination of the rights of a child born alive. These are Nebraska, in Drabbels v. Skelly Oil Co., 1951, 155 Neb. 17, 50 N.W.2d 229 and Oklahoma, in Howell v. Rushing, Okl.Sup.Ct.1953, 261 P.2d 217.

The remaining four states, denying recovery, are: Alabama, Standford v. St. Louis-San Francisco R. Co., 1926, 214 Ala. 611, 108 So. 566; Rhode Island, Gorman v. Budlong, 1901, 23 R.I. 169, 49 A. 704, 55 L.R.A. 118; Tennessee, Hogan v. McDaniel, Tenn.Sup.Ct.1958, 319 S.W.2d 221; Texas, Magnolia Coca-Cola Bottling Co. v. Jordan, 1935, 124 Tex. 347, 78 S.W.2d 944, 97 A.L.R. 1513.

Leading text writers have condemned the rule and advocated recovery: Prosser, Torts (2d ed. 1955), § 36, pp. 174-175; 2 Harper & James, Torts (1956), Sec. 18.3. And see White 'The Right of Recovery for Prenatal Injuries,' 12 La.L.Rev. 383 (1952); Note, 36 Va.L.Rev. 611 (1950); Note, 48 Mich.L.Rev. 539 (1950); Note, 63 Harv.L.Rev. 173 (1949); Note, Cornell L.Q. 648 (1950); Annotation 10 A.L.R.2d 1059, at page 1071 (1950), and 27 A.L.R.2d 1256 (1953). Prosser says that the trend toward allowing recovery 'is so definite and marked as to leave no doubt that this will be the law of the future in the United States.'

The real catalyst of the problem is the current state of medical knowledge on the point of the separate existence of a foetus. In the Smith case Justice Proctor, speaking for the New Jersey Supreme Court in a unanimous decision said this [31 N.J. 353, 157 A.2d 502]:

'The third reason for the rule denying recovery was the theory that an unborn child was a part of the mother, and therefore not a person in being to whom a duty of care could be owed. All the courts that have permitted recovery for prenatal injuries have disagreed with that theory. They have found that the existence of an infant separate from its mother begins before birth, * * *. Medical authorities have long recognized that a child is in existence from the moment of conception, and not merely a part of its mother's body. See 1 Beck, Medical Jurisprudence, 277 (11th ed. 1860); Herzog, Medical Jurisprudence, 683 et seq. (1931); Corner, Ourselves Unborn, 69 (1944); Patten, Human Embryology, 181 (1946); Maloy, Legal Anatomy and Surgery, 716 et seq. (2d ed. 1955).'

And in his dissenting opinion in Stemmer v. Kline, E. & A. 1942, 128 N.J.L. 455, 26 A.2d 489, 684, 687, which was the case overruled by Smith v. Brennan, Chief Justice Brogan said:

'While it is a fact that there is a close dependence by the unborn child on the organism of the mother, it is not disputed today that the mother and the child are two separate and distinct entities; that the unborn child has its own system of circulation of the blood separate and apart from the mother; that there is no communication between the two circulation systems; that the heart beat of the child is not in tune with that of the mother but is more rapid; that there is no dependence...

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