Tucker v. Howard L. Carmichael & Sons

• Citation: 65 S.E.2d 909,208 Ga. 201
• Decision Date: 09 July 1951
• Docket Number: No. 17487,17487
• Court: Supreme Court of Georgia
• Parties: TUCKER v. HOWARD L. CARMICHAEL & SONS, Inc.

Page 909

65 S.E.2d 909

208 Ga. 201

TUCKER v. HOWARD L. CARMICHAEL & SONS, Inc.

No. 17487.

Supreme Court of Georgia.

July 9, 1951.

Syllabus by the Court.

1. A petition of a child, seeking damages for a prenatal injury resulting from negligence of the defendant in carrying its mother to the hospital, where it was born in slightly more than three hours after the injury, alleged a cause of action and the court erred in sustaining a demurrer thereto and dismissing the same.

2. Where a demurrer to the defendant's answer is not filed within the time required by the Code Ann.Supp. § 81-301, Ga.L. 1857, p. 107; 1946, pp. 761, 773, it is not error to dismiss such a demurrer upon the ground that it was not filed in time.

This case was transferred from the Court of Appeals to the Supreme Court after that court, sitting as a body, was unable to reach a determination, the Judges being equally divided as follows: Judges Sutton, MacIntyre, and Worrill for affirmance; Judges Felton, Gardner, and Townsend for reversal. Accordingly, because of this equal division the Supreme Court has jurisdiction under art. 6, sec. 2, par. 4 of the State Constitution. Code Ann. § 2-3704, Ga.L.1945, p. 43.

The action was a suit by Margaret Loraine Tucker, an infant, by next friend, against Howard L. Carmichael & Sons, Inc., to recover damages for personal injuries allegedly caused by the defendant's negligence. The petition alleges: On October 16, 1949, about 6:30 p. m., while her mother was en route to a hospital in an ambulance operated by the defendant for the purpose of transporting the mother to the hospital, where she gave birth to the infant, the injuries occurred. The plaintiff was unborn at the time of the injuries and was not born until 9:57 p. m. on the date of the occurrence of the injuries. The direct and proximate cause of said injuries was the impact of the ambulance with another vehicle which was the result of the negligent and reckless manner in which the ambulance, in which the pregnant mother as a fare-paying passenger, was being driven. To this petition the defendant filed general and special demurrers, and on June 19, 1950, the defendant filed its answer. On July 6, 1950, the plaintiff filed a demurrer to the answer, but the court refused to pass on this demurrer on the ground that it was filed too late. After a hearing the court sustained the general demurrer to the petition and dismissed the action. The exceptions here are to the two judgments of the trial court.

G. Seals Aiken, Luther Alverson, Atlanta, for plaintiff in error.

Rex T. Reeves, Haas & Hurt, Atlanta, for defendant in error.

DUCKWORTH, Chief Justice.

1. The decisive question presented has never been passed upon by this court, and, hence, we must reach a decision without the benefit of previous rulings on that point by a Georgia court. There are numerous decisions by the courts of other States, but they are not unanimous. Without citing each specific case, reference is made to 16 American Jurisprudence, 56, § 75, 43 Corpus Juris Secundum, Infants, § 104, p. 270; 20 A.L.R. 1505 (Annotation); 97 A.L.R. 1524 (Annotation); and 10 A.L.R.2d 1059 (Annotation), where all the cases are cited. Since some of the courts, such as Ohio, Williams v. Marion Rapid Transit Co., 152 Ohio St. 114, 87 N.E.2d 334, 10 A.L.R.2d 1051, and Minnesota, Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838, 10 A.L.R.2d 634, hold that a child may maintain a suit for damages for a prenatal injury, and other courts, such as Massachusetts, Dietrich v. Inhabitants of Northampton, 138 Mass. 14, 52 Am.Rep. 242; Bliss v. Passanesi, 326 Mass. 461, 95 N.E.2d 206, and New York, Drobner v. Peters, 232 N.Y. 220, 133 N.E. 567, 20 A.L.R. 1503, hold that such an action is not maintainable, this court recognizes at the outset the conflict in decisions of other States as well as the absence of any binding precedent or Georgia statute on the subject, and will reach a decision based upon sound principles and fair deductions from the common law, which is, in such a case, of force in this State. Grimmett v. Barnwell, 184 Ga. 461, 192 S.E. 191, 116 A.L.R. 257; Hornsby v. Smith, 191 Ga. 491, 13 S.E.2d 20, 133 A.L.R. 684; Foster v. Withrow, 201 Ga. 260, 39 S.E.2d 466. An examination of the decisions of other jurisdictions discloses that those courts are in disagreement as to the common law, each asserting, without supporting the assertion with any convincing authority, that their respective conflicting holdings on this question are in accord with the common law. This court regards Blackstone as an authority on the common law. Accordingly, we quote from Book I, page 130, of Blackstone's Commentaries on the Laws of England as follows: 'The right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother's womb. An infant en ventre sa mere, or in the mother's womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate, made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. And in this point the civil law agrees with ours.'

Thus it is seen that Blackstone says that, in contemplation of the common law, life begins when the child is able to stir in the mother's womb. It can have a legacy, can own an estate, and a guardian can be assigned to it. It cannot seriously be denied that the purpose of the common law in allowing the appointment of a guardian for the unborn child is to make available processes of the law for the protection and preservation of the properties belonging to the child. There is nothing in the common law to indicate that it would withhold from such a child its processes for the purpose of protecting and preserving the person as well as the property of such child. It would therefore seem to us to be an unwarranted reflection upon the common law itself to attribute to it a greater concern for the protection of property than for the protection of the person. Whether the recognition of the right of property in the unborn child is founded upon the welfare of the child or of society, each of these is more vitally concerned about the physical impairments of the child itself than about its property. It would therefore be illogical, unrealistic, and unjust--both to the child and to society--for the law to withhold its processes necessary for the protection of the person of an unborn child, while, at the same time, making such processes available for the purpose of protecting its property.

While this court, as stated above, has never ruled upon the question presented in the present case, it has made significant utterances regarding other rights of an unborn child. We do not refer to such decisions as precedent in point to sustain the ruling we shall make, but we do so because they illuminate vital portions of this question. In Morrow v. Scott, 7 Ga. 535, it was held that an unborn child, en ventre sa mere at the time of the death of...