Torigian v. Watertown News Co.

Decision Date27 April 1967
PartiesZaven TORIGIAN, Administrator, v. WATERTOWN NEWS CO., Inc. et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Herbert D. Lewis, Boston, for plaintiff.

Mayo A. Darling, Waltham, for defendants.

Before WILKINS, C.J., and WHITTEMORE, CUTTER, SPIEGEL and REARDON, JJ.

WILKINS, Chief Justice.

This action of tort for wrongful death under G.L. c. 229, § 2 (as amended through St.1962, c. 306, § 1), 1 by the administrator of the estate of Rhonda Torigian is in two counts. Count 1 is against George L. Juliano, the operator, and count 2 is against Watertown News Co., Inc., the owner of a motor vehicle which on January 2, 1964, due to negligence struck a motor vehicle operated by Barbara Torigian, who was then three and one-half months pregnant with the plaintiff's intestate. The child was not then viable. On March 13, 1964, the plaintiff's intestate was born and lived about two and one-half hours. There was medical testimony that the accident of January 2 was the adequate cause of the premature birth, and that the cause of death was prematurity. At the close of the evidence the trial judge directed verdicts for the defendants. The plaintiff excepted.

The ground of the judge's action was not expressed, but, as the arguments before us indicate, it must have been that there cannot be recovery for prenatal injury to a nonviable fetus even where a living child is born.

In Dietrich v. Inhabitants of Northampton, 138 Mass. 14 (1884), this court in an opinion by Holmes, J., held that where a mother, between four and five months advanced in pregnancy, gave birth prematurely to an infant who survived for only a few minutes, there was no right of recovery for the death in an administrator in an action based on prenatal injury. The view was expressed (page 17) that the child was not a 'person' within the meaning of the predecessor of G.L. c. 229, § 2. The decision, which presented the issue for the first time in this country, was based principally on the lack of supporting precedent at the time. A similar result based on stare decisis was reached in Bliss v. Passanesi, 326 Mass. 461, 95 N.E.2d 206 (1950), and Cavanaugh v. First Natl. Stores Inc., 329 Mass. 179, 107 N.E.2d 307 (1952).

In Keyes v. Construction Serv. Inc., 340 Mass. 633, 165 N.E.2d 912 (1960), an administratrix brought an action for prenatal injury to her intestate while a viable child in his mother's womb. We noted (page 635, 165 N.E.2d page 914): 'Since the decisions in the Bliss and Cavanaugh cases the distinct trend of judicial opinion has been to allow recovery in cases of prenatal injuries caused by negligence.' We expressed the view (page 637, 165 N.E.2d page 915) that 'the law of this Commonwealth should be in general in harmony with that of the large and growing proportion of the other States (allowing a right of action).' The case was remanded to the lower court to permit an amendment to the declaration alleging that the child was born alive, and in that event to permit the case to stand for trial on the merits.

In the case at bar, where the fetus was not viable, we must decide whether there is a sound sitinction from the situation where the fetus is viable. A viable fetus has been defined as one so far formed and developed that if then born it would be capable of living. Keyes v. Construction Serv., Inc., supra, 340 Mass. 637, 165 N.E.2d 912. Poliquin v. MacDonald, 101 N.H. 104, 107, 135 A.2d 249.

In the vast majority of cases where the present issue has arisen, recovery has been allowed. Hornbuckle v. Plantation Pipe Line Co., 212 Ga. 504, 93 S.E.2d 727. Daley v. Meier, 33 Ill.App.2d 218, 178 N.E.2d 691. LaBlue v. Specker, 358 Mich. 558, 100 N.W.2d 445. Bennett v. Hymers, 101 N.H. 483, 147 N.E.2d 108. Smith v. Brennan, 31 N.J. 353, 157 A.2d 497. Kelly v. Gregory, 282 App.Div. (N.Y.) 542, 125 N.Y.S.2d 696. Sinkler v. Kneale, 401 Pa. 267, 164 A.2d 93. See Puhl v. Milwaukee Auto. Ins. Co., 8 Wis.2d 343, 354--357, 99 N.W.2d 163. To the extent that the views of textwriters and legal commentators have come to our attention, they are unanimously of the view that nonviability of a fetus should not bar recovery. Harper and James, Torts, § 18.3. Prosser, Torts (3d ed.) § 56. 63 Mich.L.Rev. 579, 589--590. 110 U. of Pa.L.Rev. 554, 562--564. 18 Vand.L.Rev. 847, 852--854. 1962...

To continue reading

Request your trial
46 cases
  • Ankrom v. State (Ex parte Ankrom)
    • United States
    • Supreme Court of Alabama
    • 11 Enero 2013
    ...action); Payton v. Abbott Labs., 386 Mass. 540, 559-64, 437 N.E.2d 171, 182-85 (1982) (prenatal injurv); Torigian v. Watertown News Co., 352 Mass. 446, 225 N.E.2d 926 (1967) (by implication in wrongful-death action); Womack v. Buchhorn, 384 Mich. 718, 187 N.W.2d 218 (1971) (prenatal injury)......
  • Com. v. Cass
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 16 Agosto 1984
    ...N.E.2d 912 (1960). See also Mone v. Greyhound Lines, Inc., supra 368 Mass. at 359-360, 331 N.E.2d 916; Torigian v. Watertown News Co., 352 Mass. 446, 448-449, 225 N.E.2d 926 (1967); Bliss v. Passanesi, 326 Mass. 461, 463, 95 N.E.2d 206 (1950). 6 We do not consider it a sufficient reason for......
  • Farley v. Sartin
    • United States
    • Supreme Court of West Virginia
    • 13 Diciembre 1995
    ......Inhabitants of Northampton, 138 Mass. 14, 52 Am.Rep. 242 (1884), overruled, Torigian v. Watertown News Co., 352 Mass. 446, 225 N.E.2d 926 (1967); 1 Speiser, supra § 4:33 at 180; ......
  • Toth v. Goree
    • United States
    • Court of Appeal of Michigan (US)
    • 28 Octubre 1975
    ...holding that a non-viable fetus is a 'person' within the meaning of the Massachusetts wrongful death act. Torigian v. Watertown News Co., Inc., 352 Mass. 446, 225 N.E.2d 926 (1967).' However, a later Massachusetts case, Leccese v. McDonough, 361 Mass. 64, 279 N.E.2d 339, 341 (1972), stated ......
  • Request a trial to view additional results
3 books & journal articles
  • Unborn children as constitutional persons.
    • United States
    • Issues in Law & Medicine Vol. 25 No. 3, March 2010
    • 22 Marzo 2010
    ...in Dietrich v. Northampton, 138 Mass. 14 (1884) had no direct precedent under the common law. See Torigian v. Watertown News Co. Inc., 352 Mass. 446, 447 (1967), which In Dietrich v. Northampton, 138 Mass. 14 (1884), this court in an opinion by Holmes, J., held that where a mother, between ......
  • Wrongful Death of the Fetus: Viability Is Not a Viable Distinction
    • United States
    • Seattle University School of Law Seattle University Law Review No. 8-01, September 1984
    • Invalid date
    ...of minor children under Wash. Rev. Code § 4.24.010. See supra note 8. 20. 138 Mass. 14 (1884), overruled, Torigian v. Watertown News Co., 352 Mass. 446, 225 N.E.2d 926 21. Id. at 17. 22. According to the 1939 Restatement of Torts, "a person who negligently causes harm to an unborn child is ......
  • Not of woman born: how ectogenesis will change the way we view viability, birth, and the status of the unborn.
    • United States
    • Journal of Law and Health Vol. 23 No. 2, June 2010
    • 22 Junio 2010
    ...abortions). (74) Id. (75) OHIO REV. CODE. ANN. [section][section] 2903.01-2903.08 (2008). (76) Torigian v. Watertown News Co., 225 N.E.2d 926 (Mass. 1967); Kalafut v. Gruver, 389 S.E.2d 681 (Va. (77) Berg, Owning Persons, supra note 27, at 160. (78) George P. Smith II, Australia's Frozen "O......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT