Steggall v. Morris

Decision Date08 June 1953
Docket NumberNo. 43436,43436
Citation363 Mo. 1224,258 S.W.2d 577
PartiesSTEGGALL et al. v. MORRIS.
CourtMissouri Supreme Court

Edwards, Hess & Collins, Macon, for appellants.

L. F. Cottey, Allen Rolston, Lancaster, for respondent.

WESTHUES, Commissioner.

Plaintiffs, Darwin and Barbara Steggall, are husband and wife. Being under 21 years of age, they filed this suit by a guardian, Maurice Steggall, appointed for that purpose. The suit was based on Section 537.080, RSMo 1949, V.A.M.S. Plaintiffs seek $15,000 as damages for the wrongful death of their son.

It was alleged in the petition that on May 2, 1952, Barbara Steggall was driving a car on the streets of Lancaster, Missouri; that the defendant, Sam Morris, was at the time driving a car and failed to observe a 'Stop' sign; that he was negligent in permitting his car to collide with the Steggall car and thereby caused injury to Barbara and to her unborn child; that the child was born alive on May 5, 1952; that it was named James Robert Steggall. It was alleged that as a result of the injuries received in the collision of the cars the child died on May 23, 1952. The petition further alleged 'that at the time of the accident hereinafter described said James Robert Steggall was a viable infant en ventre sa mere and was capable of living outside his mother's uterus, * * *.'

The trial court sustained a motion to dismiss plaintiffs' petition on the theory that no cause of action had been stated. More to the point, the court held that a viable child en ventre sa mere, injured through the negligence of another, later born alive, and dying as a result of the injuries, is not a 'person' within the meaning of Section 537.080, supra, and, therefore, the parents may not maintain a suit in damages for the child's death. From the judgment entered, plaintiffs appealed.

We set forth the statute in full as follows: 'Liability for wrongful death generally.--Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect of default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.'

The statute, in our opinion, is unambiguous. Stating its effect in reverse, it means that any tort-feasor who would be liable in damages to a person injured would likewise be liable in damages for the death of such person in case death resulted from such injury. 25 C.J.S., Death, Sec. 24, p. 1091. The difficulty arises in determining whether a viable child en ventre sa mere is a person within the meaning of the statute. The precise question before us is whether a viable child en ventre sa mere injured through the negligence of another, may, after it is born, maintain an action for damages against the tort-feasor.

A suit to recover damages for injuries sustained through negligence is a common-law action. We must, therefore, look to the common law to determine the question before us. There is an old, well-recognized axiom of the law, ubi jus, ibi remedium. At common law a child en ventre sa mere has for many purposes been considered as a person, especially so in the matter of property rights. For the purpose of inheriting property, a posthumous child is considered in esse from the time of its conception. 33 Words and Phrases, p. 124; State v. Atwood, 54 Or. 526, 102 P. 295, 297, 104 P. 195; Pearson v. Carlton, 18 S.C. 47, loc. cit. 55, 56; Bonbrest v. Kotz, D.C., 65 F.Supp. 138, loc. cit. 140(3); Allaire v. St. Luke's Hospital, 184 Ill. 359, 56 N.E. 638, 641, 48 L.R.A. 225 (dissenting opinion cites Blackstone); 14 C.J.S. 1109.

In 27 Am.Jur. 747, Sec. 3, it is stated that 'Biologically speaking, the life of a human being begins at the moment of conception in the 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 his birth, but not for purposes working to his detriment.'

The question of law before us has received much consideration in late years, both in cases before the courts and in reviews in law journals. The following are a few of these cases and articles which may be perused by those interested in the question: 15 Mo.Law Review 211 and 230; 12 St. Louis L.Rev. 85; 63 Harvard L.Rev. 173; 50 Michigan L.Rev. 166; 4 U. of Toronto L. Journal 285; Drobner v Peters, 232 N.Y. 220, 133 N.E. 567, 20 A.L.R. 1503, Annotation 1505; Magnolia Coca Cola Bottling Co. v. Jordan, 124 Texas 347, 78 S.W.2d 944, 97 A.L.R. 1513, Annotation 1524; Williams v. Marion Rapid Transit, Inc., 152 Ohio St. 114, 87 N.E.2d 334, 10 A.L.R.2d 1051, Annotation 1059; Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838, 10 A.L.R.2d 634, Annotation 639; Jasinsky v. Potts, 153 Ohio St. 529, 92 N.E.2d 809; Allaire v. St. Luke's Hospital, 184 Ill. 359, 56 N.E. 638, dissenting opinion at page 640, 48 L.R.A. 225; Buel v. United Rys. Co., 248 Mo. 126, 154 S.W. 71, 45 L.R.A.,N.S., 625; Bliss v. Passanesi, 326 Mass. 461, 95 N.E.2d 206; Dietrich v. Northampton, 138 Mass. 14; Stemmer v. Kline, 128 N.J.L. 455, 26 A.2d 489, 684; Damasiewicz v. Gorsuch, Md., 79 A.2d 550; Woods v. Lancet, 303 N.Y. 349, 102 N.E.2d 691, 27 A.L.R.2d 1250.

After reading the above authorities on the subject of infant en ventre sa mere, we have come to the conclusion that it is not in accordance with the truth to say the law indulges in a fiction when it attributes a legal personality to an unborn child. The above statement is not new. A number of courts and text writers have reached the same conclusion. We call particular attention to the opinion by Justice McGuire in the case of Bonbrest v. Kotz, supra, 65 F.Supp. loc. cit. 140(3). The justice there cited many medical authorities to support the statement, 'From the viewpoint of the civil law and the law of property, a child en ventre sa mere is not only regarded as human being, but as such from the moment of conception--which it is in fact.' We do not desire to go beyond the question for decision in this case. We, therefore, confine our ruling to the facts presented.

The principles of the common law authorize courts to compel a tort-feasor to compensate a person who has been injured through the negligence of the tort-feasor. 65 C.J.S., Negligence, Sec. 2, p. 324. Why, then, may not a viable child en ventre sa mere, injured through the negligence of another, maintain an action in tort after birth, against the tort-feasor? We shall consider a number of the reasons assigned for denying such right. The case mostly relied on for denying the child a right to recover damages is Dietrich v. Northampton, 138 Mass. 14. The opinion discloses that a woman, four or five months in pregnancy, was injured, causing premature birth of the child. The child lived only a few minutes. The suit was to recover for the death of the child. The court stressed the fact that the child had not reached the stage of viability. The case is, therefore, no authority for the precise question now before this court. However, we call attention to the statement of the court, 'But no case, so far as we know, has ever decided that, if the infant survived, it could maintain an action for injuries received by it while in its mother's womb.' That same reason for denying the child's right was assigned in other cases. This court in Buel v. United Rys. Co., supra, 154 S.W. loc. cit. 72(1), said, 'We have not been able to find any precedent at common law establishing the right of a child injured while en ventre sa mere, but subsequently born alive, to bring an action thereafter for the injuries so received.' The court followed the Dietrich case, supra. If inability 'to find any precedent at common law' were a good reason to deny an injured person a remedy, then, indeed, the common law would never have reached the embryo stage. Judge Boggs, in his dissenting opinion in Allaire v. St. Luke's Hospital, supra, 56 N.E. loc. cit. 640, demonstrated very effectively the fallacy of that rule. Lord Mansfield was there quoted as having said, 'The law of England would be an absurd science were it founded upon precedents only.'

Chief Justice Brogan, with whom four other justices agreed in the dissenting opinion in Stemmer v. Kline, supra, 26 A.2d 684, loc. cit. 686, had the following to say: 'It is no answer to say that there is no remedy because a cause of action is not written down in the common law in precise formula. We cannot expect to find it charted in so many words. Rather is it implicit in the common law--else we admit that the law has no remedy for a grievous wrong.'

In Bonbrest v. Kotz, supra, 65 F.Supp. loc. cit. 142(4), the court said, 'The common law is not an arid and sterile thing, and it is anything but static and inert.' We rule that the theory of no precedent is not a valid reason for denying a remedy to a person injured.

Another reason urged for denying such action to be maintained is the impossibility of proof. This reason was assigned in a number of cases. See Magnolia Coca Cola Bottling Co. v. Jordan, supra. Such a reason does not deserve much attention. In Williams v. Marion Rapid Transit, Inc., supra, 87 N.E.2d 334, loc. cit. 338, 10 A.L.R.2d loc. cit. 1057, the court answered such a contention as follows: 'In many cases the fact must be recognized that there is difficulty of proof for both sides. However, it is elementary that if a wrong has been committed there should be a remedy.' If a plaintiff cannot prove his case, no judgment will be permitted to stand. Certainly, courts are not going to refuse to entertain suits for the redress of wrongs because a plaintiff would have difficulty in proving his case. Nor should a court refuse to entertain such suits for the...

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