Stanford v. St. Louis-San Francisco Ry. Co.

• Decision Date: 20 May 1926
• Docket Number: 6 Div. 657
• Citation: 108 So. 566,214 Ala. 611
• Parties: STANFORD v. ST. LOUIS-SAN FRANCISCO RY. CO., et al.
• Court: Alabama Supreme Court

108 So. 566

214 Ala. 611

STANFORD v. ST. LOUIS-SAN FRANCISCO RY. CO., et al.

6 Div. 657

Supreme Court of Alabama

May 20, 1926

Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.

Action for damages by Mary Eliza Stanford, as administratrix of the estate of Albert Cecil Stanford, deceased, against the St Louis-San Francisco Railway Company and J.C. South. Plaintiff takes a nonsuit and appeals from adverse ruling on pleading. Affirmed.

Gray &amp Powell, of Jasper, for appellant.

Bankhead & Bankhead, of Jasper, for appellees.

ANDERSON C.J.

This suit is by the legal representative of a minor child, and seeks to recover damages for the death of said minor caused by injuries sustained by the mother of said child while alighting from one of the defendants' trains through the negligence of an agent or servant of the defendant; if being charged that the mother was quick with child, the intestate that the birth of the said child was premature, though it lived several days after its premature birth, and died as a result of injuries sustained while in its mother's womb.

By a legal fiction or indulgence, a legal personality is imputed to an unborn child as a rule of property for all purposes beneficial to the infant after birth, but not for purposes working to its detriment. By the criminal law, such being the solicitation of the state to protect life before birth, it is a great crime to kill the child after it is able to stir in the mother's womb, by an injury inflicted upon the person of the mother, and it may be murder if the child is born alive and dies of prenatal injuries. Clarke v State, 117 Ala. 1, 23 So. 671, 67 Am.St.Rep. 157. The authorities, however, are unanimous in holding that a prenatal injury affords no basis for an action in damages, in favor either of the child or its personal representative. Joseph Drobner v. Peters, 232 N.Y. 220, 133 N.E 567, 20 A.L.R. 1503 and note; Allaire v. St. Luke's Hospital, 184 Ill. 359, 56 N.E. 638, 48 L.R.A. 225, 75 Am.St.Rep. 176; Dietrich v. Northampton, 138 Mass. 14, 52 Am.Rep. 242; Buel v. United Railway Co., 248 Mo. 126, 154 S.W. 71, 45 L.R.A. (N.S.) 625, Ann.Cas.1914C, 613; Gorman v. Budlong, 23 R.I. 169, 49 A. 704, 55 L.R.A. 118, 91 Am.St.Rep. 629; Lipps v. Milwaukee Electric Co., 164 Wis. 272, 159 N.W. 916, L.R.A.1917B, 334. It may be that in a few instances hard cases may arise wherein a child may be burdened through life with an affliction produced before its birth, while, on the other hand, many cases might arise, should the rule be different, where the recovery would be based upon the...