Verkennes v. Corniea

Decision Date19 August 1949
Docket Number34950.
Citation38 N.W.2d 838,229 Minn. 365
PartiesVERKENNES v. CORNIEA et al.
CourtMinnesota Supreme Court

Syllabus by the Court.

1. On appeal from an order sustaining a general demurrer interposed by one defendant, we consider as true all allegations of material facts well pleaded in the complaint as to such defendant. In justice to the answering defendant it must be kept in mind that the allegations of the complaint which are denied by said defendant's answer are in issue at the trial of the cause. They are not to be regarded here on this appeal as true in fact as to him, but must be proved in the action.

2. Under wrongful-death statute, personal representative of unborn child alleged to be viable and capable of separate and independent existence, whose death is alleged to have been caused by the wrongful acts or omissions of the physician in charge of the mother and of the hospital in which she was confined, may maintain an action therefor on behalf of the next of kin of such deceased child.

Appeal from District Court, Hennepin County; Frank E. Reed Judge.

T H. Wangensteen, Minneapolis, for appellant.

Meagher Geer & Markham and Clyde F. Anderson, Minneapolis, for respondent.


This is an action for the wrongful death of an unborn child. It is brought under M.S.A. s 573.02, which provides in part 'When death is caused by the wrongful act or omission of any person or corporation, the personal representative of the decedent may maintain an action therefor if he might have maintained an action, had he lived, for an injury caused by the same act or omission.'

The trial court sustained defendant Maternity Hospital's demurrer to the complaint, which was based upon the ground that the complaint did not state a cause of action against it, in that plaintiff did not have legal capacity to sue since plaintiff's decedent had in fact never existed as a person in being. This is an appeal from the order sustaining the demurrer.

The complaint alleged, among other things, that Beatrice Verkennes, mother of the deceased child and wife of plaintiff, prior to May 24, 1948, had been pregnant and under the care of defendant physician, not a party to this appeal, who had undertaken to treat and care for her during her confinement and in connection with the delivery of her child; that by arrangement between the parties she was taken to Maternity Hospital in Minneapolis for confinement and delivery; that on May 23, 1948, the physician ordered Beatrice Verkennes to said hospital for confinement and delivery; that she entered such hospital for that purpose at about 7:30 p.m. May 23, 1948; that after labor incident to childbirth had commenced defendants were to call plaintiff, but that they failed to call or notify him of any danger or emergency, and in fact did not call him until the following morning, at which time they advised him that his wife and expected child had died.

The complaint further alleged upon information and belief that Beatrice Verkennes' death was caused by a rupture of the uterus during labor and hemorrhage therefrom; that defendants failed to properly aid, treat, and care for her during her confinement and to provide her with the necessary care and treatment which a skilled physician and surgeon should have furnished and a skillful and prudent hospital should have provided; and that by reason thereof the patient died undelivered.

The complaint further alleged that at the time said Beatrice Verkennes entered the hospital her unborn child was still alive, and that such child, in the exercise of reasonable and prudent care on the part of defendants, would have been born alive a normal and healthy child; that by reason of the failure of defendants to properly attend her the expected child, Baby Girl Rita Verkennes, died; that defendants, and each of them, by the exercise of reasonable, prudent, and professional care and attention, could have delivered the expected child alive; and that their failure to exercise such care and attention caused the death of the undelivered child.

1. On appeal from an order sustaining a demurrer by one defendant, we are compelled to consider as true all material facts well pleaded in the complaint as to such defendant. In justice to the answering defendant, it must be kept in mind that the allegations with reference to negligence and other like matters are denied by his answer and are not to be considered as true as against the answering defendant until proved in the same manner as if he were the only defendant.

The question, here for determination for the first time, is whether the special administrator of the estate of an unborn infant, which dies prior to birth as the result of another's negligence, has a cause of action on behalf of the next of kin of said unborn infant under the wrongful-death statute.

2. There is a conflict of authorities on the issue in other jurisdictions. A large number of courts have followed the early case of Dietrich v. Inhabitants of Northampton, 138 Mass. 14, 17, 52 Am.Rep. 242, wherein the court stated:

'* * * as the unborn child was a part of the mother at the time of the injury, any damage to it which was not too remote to be recovered for at all was recoverable by her, * * *.'

The reasoning thus expressed was adhered to in many subsequent cases. Allaire v. St. Luke's Hospital, 184 Ill. 359, 56 N.E. 638, 48 L.R.A. 225, 75 Am.St.Rep.

176; Gorman v. Budlong, 23 R.I. 169, 49 A. 704, 55 L.R.A. 118, 91 Am.St.Rep. 629; Buel v. United Railways Co., 248 Mo. 126, 154 S.W. 71, 45 L.R.A.,N.S., 625, Ann.Cas.1914C, 613; Nugent v. Brooklyn Heights R. Co., 154 A.D. 667, 139 N.Y.S. 367, appeal dismissed, 209 N.Y. 515, 102 N.E. 1107; Lipps v. Milwaukee Electric Ry. & Light Co., 164 Wis. 272, 159 N.W. 916, L.R.A.1917B, 334; Drobner v. Peters, 232 N.Y. 220, 133 N.E. 567, 20 A.L.R. 1503; Stanford v. St. Louis-San Francisco Ry. Co., 214 Ala. 611, 108 So. 566; Magnolia Coca Cola Bottling Co. v. Jordan, 124 Tex. 347, 78 S.W.2d 944, 97 A.L.R. 1513; Newman v. City of Detroit, 281 Mich. 60, 274 N.W. 710; Smith v. Luckhardt, 299 Ill.App. 100, 19 N.E.2d 446.

A substantial number of authorities have taken an opposite view. They have in most instances, cited with approval the language used by Mr. Justice Boggs, who wrote the dissenting opinion in Allaire v. St. Luke's Hospital, 184 Ill. 359, 370, ...

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1 books & journal articles
  • 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
    ...court to allow recovery for the wrongful death of a stillborn viable fetus was the Supreme Court of Minnesota. Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838 (1949). 38. Kilmer v. Hicks, 22 Ariz. App. 552, 529 P.2d 706 (1974); Justus v. Atchison, 19 Cal. 3d 564, 565 P.2d 122, 139 Cal. R......

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