In deciding this case the Appellate Court delivered the following opinion:
“The action is not given by any statute, and if maintainable it must be so by the common law, and, therefor^, the question is whether, at common law, the action can be maintained. Had the plaintiff, at the .time of the alleged injury, in contemplation of the common law, such distinct and independent existence that he may maintain the action, or was he, in view of the common law, a part of his mother? If the former, it would seem the action can be maintained; but if the latter, not, because, if a part of his mother, the injury was to her- and not to the plaintiff.
“Appellant’s counsel has argued the case learnedly and with not a little industry, but has cited only two cases in which it was attempted to maintain actions involving the question presented here, namely, Dietrich, Admr. v. Inhabitants, etc. 138 Mass. 14, (decided in 1884,) and Walker v. Great Northern Railway Co. 28 L. R. Ire. 69, (decided in 1891.) In the former case the facts were, that the mother, when advanced four or five months in pregnancy, slipped and fell by reason of a defect in the highway, the consequence of which was a miscarriage. The plaintiff was alive when delivered, but was too little advanced in foetal life to survive its premature birth. The action was brought by the administrator of the deceased infant under a statute authorizing an action for the benefit of the mother or next of kin. The trial and Supreme Courts both held that the action could not be maintained, the latter court saying: ‘Taking all of the foregoing considerations into account, and further, that 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, we think it clear that the statute sued upon does not embrace the plaintiff’s intestate, within its meaning.’
“In Walker v. Great Northern Railway Co. the statement of claim was, substantially, that Annie Walker, mother of the plaintiff, while quick with child, became a passenger on the defendant’s railway and was so received by the defendant, and that the defendant so carelessly and negligently conducted itself in carrying said Annie Walker and in managing its railway, that the plaintiff was thereby injured, crippled and deformed. A demurrer was sustained to the statement of claim, all the judges concurring in the opinion that it was defective in not showing a contractual relation between the plaintiff and the railway company, but merely averring a contract between the mother of the plaintiff and the company. The question, however, whether such an action could be maintained by an infant in its mother’s womb at the time of the alleged injury could under any circumstances be maintained, was discussed elaborately and with great learning both by court and counsel. . O’Brien, C. J., after discussing the question, expressly declined to commit himself by an opinion, leaving it, as he said, ‘an open question,’ so far as he was concerned. Harrison, J., while basing his decision on the insufficiency of the statement of claim, says in his opinion: ‘When the accident occurred on. the - 12-th of June the plaintiff was still unborn and had no existence apart from her mother, who was the only person whom the defendants contracted to carry on their line, ’ etc. Johnson, J., in his opinion says: ‘As a matter of fact, when the act of negligence occurred the plaintiff was not in esse,—was not a person or a passenger or a human being. Her age and her existence are reckoned from her birth, and no precedent has been found for this action. ’ Again, commenting on the claim of liability, the same learned judge says: ‘If it did not spring out of contract, it must, I apprehend, have arisen, if at all, from the relative situation and circumstances of the defendant and plaintiff at the time of the occurrence of the act of negligence. But at that time the plaintiff had no actual existence,—was not a human being and was not a passenger in fact; as Lord Coke says, the plaintiff was then pars viseerum matris, and we have not been referred to any authority or principle to show that a legal duty has ever been held to arise toward that which was not 'in esse in fact and has only a fictitious existence in law, so as to render a negligent act a breach of duty. ’ O’Brien, Associate J., in his opinion says of the action: ‘It is admitted that such a thing was never heard of before, and yet the circumstances which would give rise to such a claim must at one time or another have existed.’ In Dietrich v. Inhabitants, etc. supra, the court says: ‘But no case, so far as we know, has ever decided that if the infant survived it could maintain an action for injuries received by it while in its mother’s womb.’
“Appellant’s counsel substantially admits that there is no precedent for the action. While it is true that this is not conclusive that the action may not be maintained, yet in view of the fact that, as said by Mr. Associate Justice O’Brien, similar circumstances must have before occurred, it is entitled to great weight, especially when the right to maintain the action is, to say the least, doubtful. Mr. Associate Justice O’Brien, in Walker v. Great Northern Railway Co. says: ‘The law is, in some respects, a stream, that gathers accretions, with time, from new relations and conditions. But it is also a landmark that forbids advance on defined rights and engagements; and if these are to be altered,—if new rights and engagements are to be created,—that is the province of legislation and not decision.’ In this we fully concur. That a child before birth is, in fact, a part of the mother and is only severed from her at birth, cannot, we think, be successfully disputed. The doctrine of the civil law and the ecclesiastical and admiralty courts, therefore, that an unborn child may be regarded as in esse for some purposes, when for its benefit, is a mere legal fiction, which, so far as we have been able to discover, has not been indulged in by the courts of common law to the extent of allowing an action by an infant for injuries occasioned before its birth. If the action can be maintained, it necessarily follows that an infant may maintain an action against its own mother for injuries occasioned by the negligence of the mother while pregnant with it. We are of opinion that the action will not lie. The judgment will be affirmed.”
We concur in the foregoing views, and in the conclusion reached by the Appellate Court. Accordingly, the judgment of the Appellate Court is affirmed.
Judgment affirmed.