West v. McCoy, 17460
Court | United States State Supreme Court of South Carolina |
Citation | 105 S.E.2d 88,233 S.C. 369 |
Docket Number | No. 17460,17460 |
Parties | Walter B. WEST, Administrator of the Estate of Baby Child (unnamed) West, Deceased, Plaintiff-Respondent, v. C. L. McCOY and Curtis Catoe, Defendants-Appellants. |
Decision Date | 20 August 1958 |
D. Glenn Yarborough, Lancaster, William F. Prioleau, Jr., Columbia, for defendants-appellants.
Richards, Caskey & Richards, Lancaster, for plaintiff-respondent.
This appeal arises out of an action for the wrongful death of an unborn child, said action being brought under Section 10-1951, Code of Laws of South Carolina, 1952, which reads as follows:
'Whenever the death of a person shall be caused by the wrongful act, neglect or default of another and the act, neglect or 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, the person who would have been liable, if death had not ensued, shall be liable to an action for damages, not withstanding the death of the person injured, * * *'.
The complaint, omitting immaterial parts, appears as follows:
* * *
* * *
Appellant demurred to the foregoing complaint upon the grounds that 'it appears on the face thereof that the Complaint does not state facts sufficient to constitute a cause of action, and that the Plaintiff has no legal capacity to sue.'
The demurrer was overruled, and this appeal presents for the first time before this Court the question of whether or not an action will lie for the wrongful death of an unborn child, which is quick and capable of moving in its mother's womb.
The weight of authority supports the rule that in absence of a statute, a prenatal injury affords no basis for an action for wrongful death by the parents or personal representative of a child. This is true where a statute giving the right of action for the wrongful death is construed as conferring such right only where the injured person could himself have maintained an action for damages had he lived and a child so injured is regarded as having no right of action. 16 Am.Jur. 56, Sec. 75.
The 1958 Supplement to this Volume, Page 32, sets forth:
'* * * Some comparatively recent decisions, indicative of a more liberal and realistic approach to the problem, support the view that an unborn child, viable and capable of existing independently of its mother when injuries are wrongfully inflicted upon it, may, after birth, maintain an action for such injuries. * * *'
The following cases are of interest in considering the proposition that an unborn child has no cause of action for prenatal injuries, and no right of action exists for its death prior to birth in that the unborn child is a part of the mother at the time of injury and any damage to it which is not too remote to be recovered at all is recoversable by her: Dietrich v. Inhabitants of Northampton, 138 Mass. 14, 52 Am.Rep. 242; 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 Rys. Co., 248 Mo. 126, 154 S.W. 71, 45 L.R.A.,N.S., 625, Ann.Cas.1914C, 613, 4 N.C.C.A. 129; Nugent v. Brooklyn Heights R. Co., 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, 13 N.C.C.A. 1113; Drobner v. Peters, 232 N.Y. 220, 133 N.E. 567, 20 A.L.R. 1503, 21 N.C.C.A. 702; Stanford v. St. Louis-San Francisco R. Co., 214 Ala. 611, 108 So. 566, 25 N.C.C.A. 874; 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; Drabbels v. Skelly Oil Co., 155 Neb. 17, 50 N.W.2d 229; Howell v. Rushing, Okl., 261 P.2d 217; Norman v. Murphy, 124 Cal.App.2d 95, 268 P.2d 178; Cavanaugh v. First Nat'l Stores, Inc., 329 Mass. 179, 107 N.E.2d 307; Restatement, Torts, Sec. 869; 52 Am.Jur. 291, 296; Mays v. Weingarten, Ohio App., 82 N.E.2d 421.
Recently the trend has been toward a more liberal construction, and various Courts have had before them for consideration cases involving prenatal injuries to a fetus or unborn child of various stages of development where recovery was permitted or indicated. Stemmer v. Kline, 17 A.2d 58, 19 N.J.Misc. 15; Id., 128 N.J.L. 455, 26 A.2d 489, 684; Kine v. Zuckerman, 4 Pa.Dist. & Co.R. 227, but see Berlin v. J. C. Penney Co., Inc., 339...
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Willis v. Wu, 25915.
...(nonviable fetus may 362 S.C. 155 not maintain wrongful death action where fetus was stillborn after a vehicle wreck); West v. McCoy, 233 S.C. 369, 105 S.E.2d 88 (1958) (same); Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964) (unborn child, a viable fetus, is capable of suffering lega......
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Planned Parenthood S. Atl. v. State, 28127
...of her fetus may, of course seek recovery for her own personal injuries." Id. at 628-29, 532 S.E.2d at 857 (referencing West v. McCoy, 233 S.C. 369, 105 S.E.2d 88 (1958)). The court reiterated the distinction between nonviable fetuses who are not able to recover and viable fetuses who are a......
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Toth v. Goree, Docket No. 21827
...N.E.2d 339 (1972); NEW HAMPSHIRE: Poliquin v. MacDonald, 101 N.H. 104, 135 A.2d 249 (1957); SOUTH CAROLINA: West v. McCoy, 233 S.Ct. 369, 105 S.E.2d 88 6 The Massachusetts statute reads in relevant part: 'Chapter 229, § 2, as amended, reads in part (emphasis supplied): 'A person who (1) by ......
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State, Use of Odham v. Sherman, 124
...case, however, the child was not viable. Nor was it viable in the cases of Mace v. Jung, 210 F.Supp. 706 (D.C. Alaska), or West v. McCoy, 233 S.C. 369, 105 S.E.2d 88. But see In re Scanelli, 208 Misc. 804, 142 N.Y.S.2d 411 (1955), and Muschetti v. Charles Pfizer & Co., 208 Misc. 870, 144 N.......
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Toth v. Goree, Docket No. 21827
...339 (1972); NEW HAMPSHIRE: Poliquin v. MacDonald, 101 N.H. 104, 135 A.2d 249 (1957); SOUTH CAROLINA: West v. McCoy, 233 S.Ct. 369, 105 S.E.2d 88 (1958).6 The Massachusetts statute reads in relevant part:'Chapter 229, § 2, as amended, reads in part (emphasis supplied): 'A person who (1) by h......
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State, Use of Odham v. Sherman, 124
...... Nor was it viable in the cases of Mace v. Jung, 210 F.Supp. 706 (D.C. Alaska), or West v. McCoy, 233 S.C. 369, 105 S.E.2d 88. But see In re Scanelli, 208 Misc. 804, 142 N.Y.S.2d 411 ......
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Humes v. Clinton, 63436
...237 N.W.2d 297 (1975) lv. to appeal denied 396 Mich. 836 (1976); Poliquin v. MacDonald, 101 N.H. 104, 135 A.2d 249 (1957); West v. McCoy, 233 S.C. 369, 105 S.E.2d 88 The district court in the present case stated that a great number of states recognize wrongful death actions on behalf of unb......
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Crosby v. Glasscock Trucking Co., Inc., 25132.
...the clear intent of the legislature. Davenport v. Summer, 273 S.C. 771, 259 S.E.2d 815 (1979). Construing this statute, in West v. McCoy, 233 S.C. 369, 105 S.E.2d 88 (1958), we held a nonviable stillborn fetus cannot maintain a wrongful death action. West is still valid2 and controls this c......