dissenting:
It may be conceded no case adjudicated at the common law can be found wherein a plaintiff was awarded damages for injuries inflicted upon his person whilst in the womb of his mother. But an adjudicated case is not indispensable to establish a right to recover under the rules of the common law. ' Lord Mansfield declared: “The law of England would be an absurd science were it founded upon precedents only. Precedents,” he observed, “were to illustrate principles and to give them a fixed certainty.” (1 Kent’s Com. 477.) In speaking of the establishment and growth of rights at the common law, Mr. Cooley, in his work on Torts, (pp. 13-15,) said: “The process of growth has been something like the following: Every principle declared by a court in giving judgment is supposed to be a principle more or less general in its application, and which is applied under the facts of the case, because, in the opinion of the court, the facts bring the case within the principle. The case is not the measure of the principle. It does not limit and confine it within the exact facts, but it furnishes an illustration of the principle, which, perhaps, might still have been applied had some of the facts been different. Thus, one by one, important principles become recognized through adjudications which illustrate them and which constitute authoritative evidence of what the law is when other cases shall arise. But cases are seldom exactly alike in their facts. They are, on the contrary, infinite in their diversities; and as numerous controversies on differing facts are found to be within the reach of the same general principle, the principle seems to grow and expand, and does actually become more comprehensive, though so steadily and insensibly, under legitimate judicial treatment, that for the time the expansion passes unobserved. But new and peculiar cases must also arise from time to time, for which the court must find the governing principle, and these may either be referred to some principle previously declared, or to some one which now, for the first time, there is occasion to apply. But a principle newly applied is not supposed to be a new principle. On the contrary, it is assumed that from time immemorial it has constituted a part of the common law of the land, and that it has only not been applied before because no occasion has arisen for its application.”
At the common law actions were maintainable to recover damages occasioned by injuries to the person of the plaintiff, whether inflicted intentionally or through the negligence of the defendant. The governing principle illustrated by such cases is, that the common law, by way of damages, gave redress for personal injuries inflicted by the wrong or neglect of another. The case disclosed by the declaration under consideration is embraced within the limits of the principle thus recognized, and it is clear recovery could have been maintained at common law unless the fact the plaintiff was .unborn when the alleged injuries were inflicted would have operated to deny a right of action. The argument is, that at the common law an unborn child was but a part of the mother, and had no existence or being which could be the subject matter of injury distinct from the mother, and that an injury to it was but an injury to the mother; that in such case there was but one person—one life,— that of the mother. A foetus in the womb of the mother may well be regarded as but a part of the bowels of the mother during a portion of the period of gestation; but if, while in the womb, it reaches that pre-natal age of viability when the destruction of the life of the mother does not necessarily end its existence also, and when, if separated prematurely and by artificial means from the mother, it would be so far a matured human being as that it would live and grow, mentally and physically, as other children generally, it is but to deny a palpable fact to argue there is but one life, and that the life of the mother. Medical science and skill and experience have demonstrated that at a period of gestation in advance of the period of parturition the foetus is capable of independent and separate life, and that though within the body of the mother it is not merely a part of her body, for her body may die in all of its parts and the child remain alive and capable of maintaining life when separated from the dead body of the mother. If at that period a child so advanced is injured in its limbs or members and is born into the living world suffering from the effects of the injury, is it not sacrificingjruth to a mere theoretical abstraction to say the injury was not to the child but wholly to the mother?
A child in ventre sa mere was regarded at the common law as in esse from the time of conception for the purpose of taking any estate, whether by descent or devise, or under the statute of distribution if the infant was born alive after such a period of foetal existence that its continuance in life was or might be reasonably expected. (10 Am. & Eng. Ency. of Law, 624; Coke’s Lift. 36.) Blackstone, after declaring the right of personal security to be an absolute right, says: “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. For if a woman is quick with child, and by a potion or otherwise killeth it in her womb, or if any one beat her, whereby the child dieth in her body and she is delivered of a dead child, this, though not murder, was by the ancient law homicide or manslaughter.”
Though it was the rule of the common law if one should unlawfully beat a woman pregnant with child, and thereby cause the child to die in the body of the mother, the crime was not deemed to be murder but the. ancient crime of homicide or manslaughter, still the doctrine of the common law was, if the child should not die in the womb of the mother but should be born alive, and should afterwards die in consequence of the assault while in the womb of the mother, the offense was deemed to be murder. (3 Inst. 50; 1 P. Wms. 345.) If, in the contemplation of the common law, life begins as soon as the infant is able to stir in the mother’s womb, and that an injury inflicted upon an infant while in the womb of the mother shall be deemed murder if the infant survive the wound during pre-natal life but succumbs to it and dies from it after being born, and if every legitimate infant in ventre sa mere is to be deemed as born for all purposes beneficial to the child, why should it be supposed the common law would have denied to an infant born alive the right to recover damages for "the injury inflicted upon it while in the womb of the mother? Had such injury, though inflicted on the child while in the mother’s womb, been sufficient to cause the death of the infant after it had been born alive, the common law would have regarded the injury as having been inflicted upon a human being and punished the perpetrator accordingly; and that being true, why should the infant which survives be denied the right to recover damages occasioned by the same injury? In the case at, bar the infant, when the injury was inflicted, had, as the declaration alleged, reached that advanced stage of foetal life which would have, according to the experience of mankind and according to the medical learning of the age, endowed it with such vitality and vigor, and. with members and faculties so far complete and mature, that it could have maintained independent life and the death of the mother would not have deprived it of life. It is but natural justice that such an infant, if born alive, should be allowed to maintain an action in the courts for injuries so wrongly committed upon its person while so in the womb of the mother.
Two cases are much relied upon as in opposition to this view. One is the case of Dietrich v. Inhabitants, 138 Mass. 14. The facts there were: A woman four or five months advanced in pregnancy slipped and fell by reason of a defect in the highway, in consequence of which there was a miscarriage. The child was alive when delivered, but was too little advanced in foetal life to survive its premature birth.and died before it was severed from its mother. The person of the infant was not directly injured otherwise than by a communication of the shock to the mother, and it was held an action to recover damages did not accrue to an administrator of the child. This case can have little application here, for the reason in the case at bar it appears from the declaration the child had reached that stage of foetal life when it was capable of continued existence independent of the mother; that its person was injured within itself, and it was afterwards born alive and with sufficient strength and maturity to maintain independent existence, and still lives. It does not follow from the Dietrich case the plaintiff in this cause should not be recognized as capable of having a locus standi in court to recover damages for injuries to his person, or that the Supreme Court of Massachusetts would have so held.
The other case is that of Walker v. Great Northern Railway Co. 28 L. R. (Ire.) 69, in which the facts were: A woman far advanced in pregnancy took passage on defendant’s railway. There was an accident to the train whereby the mother and the child were seriously injured, so that the child was born a cripple. The action was by the child to recover damages, and on demurrer the court held the suit could not be maintained. The cause could only have been sustained on the ground the defendant road had failed to observe some duty it owed to the child arising generally by reason of its position as a common carrier or of some contract with the child. The declaration did not disclose the railroad company had knowledge of the existence of the child or of the condition of the mother, or that there was any contract with reference to the carriage of the child or any consideration paid for such carriage. The ruling of the court that the railway company was not answerable to the child can have no influence adverse to the plaintiff in the case at bar. Here the appellee hospital knew of the condition of the mother and of the existence of the plaintiff in her womb, contracted with direct reference to the safety and care of both mother and child, and received compensation for the performance of a duty to both.
If in delivering a child an attending physician, acting for a compensation, should wantonly or by actionable negligence injure the limbs of the infant, and thereby cause the child, although born alive and living, to be maimed and crippled in body or members, it would be abhorrent to every impulse of justice or reason to deny to such a child a right of action against such physician to recover damages for the wrongs and injuries inflicted by such physician. The appellee corporation owed it as a duty to the plaintiff, though unborn, to bestow due and ordinary care and skill to the matter of his preservation and safety, before and at the time of his birth. ■ It appeared from the declaration that duty was neglected, and that the limbs and body of plaintiff received injuries by reason of such negligence, and that his legs and arms are now maimed and crippled by reason thereof. Should compensation for his injuries be denied on a mere theory, known to be false, that the injury was not to his person but to the person of the mother? The law should, it seems to me, be, that whenever a child in útero is so far advanced in pre-natal age as that, should parturition by natural or artificial means occur at such age, such child could and would live separable from the mother and grow into the ordinary activities of life, and is afterwards born and becomes a living human being, such child has a right of action for any injuries wantonly or negligently inflicted upon his or her person at such age of viability, though then in the womb of the mother. That proposition having been established, that an adjustment of damages with the mother could not preclude the child would naturally and necessarily follow.
The argument there can be no certainty an unborn child is dead or alive when an injury is inflicted upon the mother is answered by the allegations of the declaration that the plaintiff was born alive and is a living human being. There was, therefore, no uncertainty as to the fact the plaintiff was alive in the mother’s" womb when the injuries were inflicted.