dissenting.
I am unable to concur in the conclusion of the majority of the court in this case. What was said by the learned judges in deciding the cases of Dietrich, 138 Mass. 14, and Walker, 28 Law Rep. (Ireland), 69, in so far as those opinions may be applicable to the case at bar, was by way of argument, and, in my opinion, not necessary to the decision of the particular questions in those cases, and therefore not authority as precedents in the solution of the question here involved, except to the extent that the argument appeals to reason. In the Dietrich case the mother of the child was between four and five months advanced in pregnancy, and the child was too little advanced in foetal life to survive its premature birth, died before it was separated from its mother, and was not directly injured, unless by a communication of the shock to the mother, nor was there any contract between the mother and the defendant which in any way related to the child or for its benefit in any respect. The court might well have held that under all these facts an action could not be maintained, without deciding broadly, as it did, that no action would lie for injuries received by the child while in its mother’s womb. The opinion seems based largely on the fact that no decided case had ever held that such an action would lie, and for the further reason that the child was a part of the mother at the time of the injury.
In the Walker case there was no notice to the defendant railway company that carried the mother as a passenger, of her condition, and the contract of carriage, out of which its duty, if any, to the child arose, was made without any reference to the unborn child. This case might well have been decided, as it was by the learned Chief Justice, solely/ on the ground that there were no facts set out in the state-* ment of claim which fixed the defendant with liability for breach of duty as carriers of passengers. The railway company, having no notice of the condition of the mother, of the child’s existence within her womb, it might well be said, so far as concerned the company, the child was a nonentity. Hot so however, in the case at bar, where the mother contracted with the defendants with express reference to her condition, her confinement being imminent, and necessarily, in the nature of things, her contract was with reference to her unborn child and its care.
At the common law it is well settled that one is liable as for murder or manslaughter, according to the particular facts of each case, when he willfully and maliciously injures a child in its mother’s womb, and death of the child results from such injuries, provided it be born alive. In the Walker case, supra, the learned Ohief Justice quotes from Blackstone’s Com., viz.: “ In all cases the crime includes an injury; every public offense is also a private wrong and somewhat more; it affects the individual and also affects the public. * * * Upon the whole, .we may observe, in taking cognizance of all wrongs or unlawful acts, the law has a double view, viz., not only to redress the party injured; by either restoring him to his right if possible, or by giving him an equivalent, but also to secure to the public the benefit of society by preventing or punishing every breach and violation of those laws which the sovereign power has thought proper to establish for the government and tranquillity of the whole.” Also from Stephen’s Com., referring to the commission of crimes amounting to felony, viz.: “There still exists the remedy for the private wrong; even in cases of felony it is only suspended _ during the prosecution of the crime.”
If the willful and malicious conduct of a person causing an injury to an unborn child resulting in its death, after it has been born alive, will fasten on that person the crime of murder or manslaughter, there seems to me no sound and logical reason, since the crime includes the injury to the child, and since the public offense is also a private and special wrong to the helpless infant, why, if the child should be so fortunate as to survive the injury, which, had it caused death after being born alive, would have made the wrong-doer a criminal before the law, the child should not have his action at law against this same wrong-doer for damages because of his tort.
It is the boast of the law that for every wrong it provides a remedy, but the law which says to the helpless infant, “ If your injuries were inflicted, however wrongful, while you were sleeping peacefully in your mother’s womb, though pulsating with life and vigor, or while you were moving forward to the outer world in obedience to nature’s law, with a power almost irresistible, though just beyond the light of day, still a part of your mother, there is no remedy for your wrongs, if you live through them, though crippled or deformed for life, but if you can only die because of your injuries, the man who wronged you shall be indicted for murder and punished,” gives but scant recompense, gives no practical redress, no adequate remedy to the wronged child. Such law is a reproach to civilization. It seems illogical to say the action can not be maintained because the child is a part ■ of the mother. Long before it sees the light it is a living soul, pulsating with life, making its presence known by most vigorous action oftentimes, a distinct entity moving and having its being, though carried by the mother and attached to her by the umbilical cord. Why may it not be wronged ? - Why may it not suffer injuries? It can not be contended for a moment that the physician attending at the birth of a child would not be liable in damages to the child, if, after delivering it from its mother, but before he cut the connecting cord, he should willfully and maliciously wrench off both its arms. Could it be said that such an injury was to the mother, and that she must sue for and recover the damages to her child in such a case, because the doctor had not severed the umbilical cord-—because the child was still a mrt of 1 the mother ? I think not. Could it be successfully contended that for an injury to Chang, one of the famous Siamese twins, he could not maintain an action because he was a part of his brother Eng—that he was not a separate entity ? I think not. Could it be contended that in such ease Eng was the person to bring the suit, because the injury to his brother Chang was an injury to him, Eng ? I think it quite as reasonable to say that the mother can ■recover for injuries to her living, moving child, because contained in her womb or lying beside her after its birth, attached by the umbilical cord, as to say that in the case of an injury to one of the Siamese twins, the other could ■have brought suit. History informs us that one of these ytwins survived the other several hours, and medical author-f ities give numerous, instances of living children being deliv- ' ered from their mothers after life was extinct. The child, when capable of being born alive, is, in my opinion, a distinct entity, under the common law, and although no decided civil case, so far as we know, has so held, humanity and enlightened civilization demand that the common law, as administered in Illinois in the nineteenth century, should so declare. I therefore think that though there is no precedent—no decided case like the one at bar—there is no good reason, as matter of law, why the action will not lie in behalf of -this appellant.