Stemmer v. Kline

• Decision Date: 26 December 1940
• Parties: STEMMER et al. v. KLINE.
• Court: New Jersey Circuit Court

17 A.2d 58

19 N.J.Misc. 15

STEMMER et al.

v. KLINE.

Circuit Court of New Jersey, Middlesex County.

Dec. 26, 1940.

Action by Jacob Stemmer, Jr., by his next friend, Jacob Stemmer, Sr., and by Pauline Stemmer and Jacob Stemmer, Sr., individually against William Kline for personal injuries to infant plaintiff and consequential damages sustained by other plaintiffs as result of defendant's malpractice in treating infant plaintiff's mother before his birth.

George L. Burton, of South River, for the Motion.

Andrew O. Wittreich, of Jersey City, opposed.

OLIPHANT, Judge.

This is an action for personal injuries brought by Jacob Stemmer, Jr., an infant, by his next friend Jacob Stemmer, Sr., against William Kline, a physician, who treated the mother of the infant prior to his birth, and for consequential damages alleged to have been sustained by his parents, Pauline Stemmer and Jacob Stemmer.

It is before the Court, on a motion raised by the amended answer to strike the first and second counts of the complaint on the ground that the allegations contained therein are insufficient in law to constitute a cause of action. The amended answer contains as a separate defense the following: "The defendant will object at, on or before the trial of this action, that the allegations contained in the first and second counts are insufficient in law to constitute a cause of action against the defendant and in favor of the plaintiff upon the ground that an infant cannot maintain an action for personal injuries sustained while en ventre sa mere and that the parents of such infant cannot recover consequential damages resulting from such alleged injuries."

The suit is based upon the alleged malpractice of the defendant in causing injury to Jacob Stemmer, Jr., en ventre sa mere, through the negligent diagnosis of the mother's condition and subsequent treatment by the administering of X-ray treatments whereby the child was severely injured and born a microcephalic and an idiot without skeletal structure, sight, speech, hearing or the power of locomotion. The infant plaintiff is now five years of age.

The sole issue presented by this motion is whether an infant can recover for personal injuries allegedly sustained while en ventre sa mere, and whether the parents can recover consequential damages by reason of such alleged injuries.

"Life" says Blackstone "Begins in contemplation by law as soon as an infant is able to stir in the mother's womb." 1 Bl. Com. 129.

The law has long recognized that for all purposes beneficial to the infant after birth, an infant en ventre sa mere shall be considered to be born. Doe v. Clarke, 2 H.Black. 400. Such an infant can have a guardian appointed for it. Long v. Blackball, 7 Durn. and East, 100. In this State by statute, that is specifically provided for. R.S. 3:7-14, N.J.S.A. 3:7-14. An estate may be given or bequeathed to it. Marsellis v. Thalhimer, 2 Paige, N.Y., 35, 21 Am.Dec. 66. By Thelluson v. Woodford, 4 Ves. Jr. 227-343, upon the death of the father, by the negligent act of another occurring prior to the child's birth, the latter may recover for the injury sustained. In that case it was pointed out by the Court that this so-called nonentity might be vouched in a recovery though it is for the purpose of making him answer in value. He may be named as an executor. He may take by devise. He may have an injunction.

In Wallace v. Hodson, 2 Atk. 117, Lord Hardwicke said: "The principle reason I go upon in the case is that the plaintiff was en ventre sa mere at the time of her brother's death and a person in rerum natura so that, by the rules of common and civil law, she was to all intents and purposes a child as much as if born in the father's life time."

In the same case Lord Hardwicke notes that under the civil law the reason for the rule is that it is necessary to adopt it whenever it is for the benefit of the child to be considered as born and he states the rule to be "that such child is to be considered living to all intents and purposes."

In Doe v. Clarke, supra, it is said that "wherever such consideration would be for its benefit, a child en ventre sa mere shall be considered as absolutely born." Justice Buller in Thelluson v. Woodford, supra, says "Why shall not children en ventre sa mere be considered as generally in existence? They are entitled to all the privileges of other persons."

After citing many of the above cases Judge Thomas in Nugent v. Brooklyn Heights R. Co., 154 App.Div. 667, 139 N.Y.S. 367, 368, said "It is repeating arguments several times advanced in this connection to say that an unborn child has, conditioned upon its birth, usual rights of property, and the remedies that pertain to them for actionable injuries inflicted before his birth. The being that owns is the supreme consideration and has capacity for ownership. What is owned and the right to own are merely incidental to the living entity. And yet shall the incidents be valued in legal cognizance and the owner not?"

Vice Chancellor Backes in Re Haines' Will, 98 N.J.Eq. 628, 129 A. 867, 868, said "By a fiction of the law adopted from the civil law a child en ventre sa mere is supposed in law to be born for many purposes, but only, with a single exception, when it works for the benefit of the child." The exception mentioned is that where the rule against perpetuities is involved.

While this was a case in equity, there is no reason why the same rule should not apply at law and it cannot be argued that a right of action to recover for prenatal injuries is not for the child's benefit.

If the mother be quick, the child was at common law a separate entity entitled to the recognition and protection of our Courts.

In our own State at common law such a child was recognized as a "person". It is evidenced by the decision of the Supreme Court in State v. Cooper, 22 N.J.L. 52, 51 Am.Dec. 248. The question there was whether an attempt to procure an abortion, the mother not being quick with child, was an indictable offense at common law. The Court answered it as follows: "We are of opinion that the procuring of an abortion * * * unless the mother be quick with child, is not an indictable offence." The Court said that "at common law [there was] a distinction equally well settled between the condition of the child before and after the mother is quick. * * * In contemplation of law life commences at the moment of quickening, at that moment when the embryo gives the first physical proof of life [in the mother], no matter when it first received it." Quoting from 1 Hawk, B. 1 C, at 31 § 16, it said "It was anciently holden that the causing of an abortion by giving a potion to, or striking a woman big with child, was murder; but at this date it is said to be a great misprision only, and not murder, unless the child be born alive, and died thereof."

In State v. Murphy, 27 N.J.L. 112, at page 114, the Court said that at Common law the procuring of an abortion was an offense only against the life of the child as a result of which the law as contained in the first clause of the supplement to the Act for the Punishment of Crimes was passed.

The perfect answer and unanswerable argument in the determination of the problem presented here, a problem in the law of torts is the application of the criminal law in offenses committed against an infant en ventre sa mere.

Assault and battery is an integral, a component part of murder. Murder by force cannot be committed without there being an assault and battery. If it is an offense under the criminal law to assault and batter a child en ventre sa mere, that crime ripening into murder if the child is born alive and later dies as the result of its prenatal injuries, it in all justice and logic must be said that that child has a right of action after its birth for prenatal injuries inflicted upon it by the wrongdoer, a tort feasor, and that it should be allowed to recover if possible, if proper, damages resulting from such tort, for the injuries caused by that assault and battery. Assuming as it must be assumed, that an indictment for assault and battery would lie, certainly a right of action sounding in damages for that tort should be allowed. It is no answer to say that the punishment of crime is for the public benefit, while the remedy in tort is for private redress.

It is said that the great weight of authority is against the right of recovery for an alleged tort committed against a child en ventre sa mere. It is true that the majority of the decided cases are for that proposition, but to my mind the weight of authority holds for the right of recovery, and I believe the more potent reasoning is found in the opinions holding for the existence of a right of action.

Let us examine the cases which it is claimed hold against a right of action. The first reported on the subject is that of Dietrich v. Northampton, 138 Mass. 14, 52 Am.Rep. 242, decided in 1884. It was determined on a statutory construction. Justice Holmes held that an unborn child was part of the mother and any damage to it, which was not too remote, was recoverable by her and that the statute sued upon did not embrace the plaintiff's intestate within this meaning. Further, in this case the child did not survive its premature birth.

In the year 1890, the Supreme Court of Ireland decided the case of Walker v. Great Northern Ry. Co., 28 L.R.Ir. 69. It was not determined on the question presented here but solely on contractual relationship.

The case of Allaire v. St. Luke's Hosp. et al., 184 Ill. 359, 56 N.E. 638, 639, 48 L. R.A. 225, 75 Am.St.Rep. 176, was decided in 1900. This case is cited as an authority in almost every case thereafter reported on the subject. The Court said "The action is not given by any statute, and, if maintainable, it must be so by the common law, and therefore the question is whether, at common law, the action can be maintained." It must be noted in considering this case that the complaint...