The supplemental opinion of Justice Henshaw (which was first called to my attention after my dissenting opinion was filed) does not modify my views as there expressed. I think it only necessary to call attention to the fact that there is no ground for the assumption that in the action by the mother there was a finding expressed or implied that she was sole heir, or that in her complaint she alleged that she was sole heir. The only facts before us are the facts alleged in the complaint and confessed by the defendant's demurrer. All that is alleged is, that while plaintiff was en ventre sa mere, the mother recovered a judgment for the loss sustained by her, which judgment was then (at the filing of the complaint) suspended by an appeal to the supreme court, for which reason she refused to join in this action, and was therefore made a party defendant. It was also alleged that in her action the rights of this plaintiff were not considered or determined.
But suppose the fact was, as Justice Henshaw assumes, that the mother in her action alleged herself to be the sole heir, and that the defendant admitted the allegation, or that it denied it for want of information, and the court found the issue in her favor upon perjured testimony. Could her fraud and the laches or misfortune of the defendant deprive the unborn child of its right of action against the defendant and turn it over to the doubtful remedy of an action against its mother, who is possibly insolvent? If she is able to respond to such an action, she would be equally able to respond to a cross-complaint of this defendant in the present action to recover *Page 487 from her the same damages that the plaintiff recovered against it. If either of two innocent parties is to be remitted to an action against the mother, it would be more consonant with equitable principles to select that one who was probably guilty of laches than one who could not possibly have been at fault.
The following is the opinion rendered in Department Two, June 20, 1902, which is affirmed in the opinion of the court in Bank: —