(concurring).
As the original complaint read it seems to me to be a suit by plaintiffs to recover damages for the negligent homicide of their child born dead. No other injury was alleged. Nor was it alleged that the furnishing of medical treatment by the Government hospital was practicable. I do not think the Texas death statute gives parents any right to sue for the death of a child which has never breathed. There was no error in the original dismissal.
But immediately the plaintiff moved to set the dismissal aside and be allowed to plead and prove -that the treatment of the wife was- entirely practicable, and that long prior to the birth the officials of the hospital gave assurance that the desired medical service would be given her, and that -they did in fact attend her and give her medical attention prior to the date of birth, and when on that date an ambulance was requested to take her to the hospital ¡they advised the ambulance was on the way. It seems to me that the duty of the medical officers of the army to attend the families of officers and soldiers is not discretionary, ■but only conditioned on the fact of practieableness, and the facts proposed to be proved show practicableness, recognized and admitted by the hospital. Buit the proposed pleading still does not -allege any injury save that the child died in birth, which is not an actionable injury in Texas.