October 3, 1940.
October 28, 1940.
Infants — Actions — Injuries sustained while en ventre sa mere — Restatement, Torts.
1. An infant cannot maintain an action for injuries sustained while en ventre sa mere.
2. Restatement, Torts, section 869, cited.
Argued October 3, 1940.
Before SCHAFFER, C. J., MAXEY, DREW, LINN and PATTERSON, JJ.
Appeal, No. 108, March T., 1940, from order and decree of C. P. Westmoreland Co., Nov. T., 1939, No. 41, in case of Daniel Berlin, a minor by his father and next friend, Harland B. Berlin, and Harland B. Berlin in his own right, v. J. C. Penney Company, Inc. Judgment affirmed.
Affidavit of defense raising questions of law sustained, before WHITTEN, P. J. and LAIRD, J., opinion by LAIRD, J., and judgment entered for defendant. Plaintiff appealed.
Error assigned, among others, was order sustaining affidavit of defense raising questions of law.
Joseph M. Loughran, of Scales, Loughran Shaw, for appellant.
Robert W. Smith, of Smith, Best Horn, for appellee.
The question here involved is whether an infant can maintain an action for injuries sustained while en ventre sa mere. The court below held that he could not.
This question has never been presented to an appellate court in Pennsylvania. The courts of review of other states have consistently held that such an action cannot be maintained: Drobner v. Peters, 232 N.Y. 220, 133 N.E. 567; Dietrich v. Northampton, 138 Mass. 14, 52 Am. Rep. 242; Ryan v. P. S.C. T., 18 N.J. Misc. 429, 14 A. (2) 52; Allaire v. St. Luke's Hosp., 184 Ill. 359, 56 N.E. 638.
At early common law the mother and child until birth were considered as one, the child was not deemed to have an existence independent of the parent. As a result, an injury to an unborn child was looked upon as an injury to the mother. It is true that the unity of mother and child has been relaxed in modern times and that today for some beneficial purposes a child en ventre sa mere is considered as born. However, there is no warrant for holding, independent of a statute, that a cause of action for pre-natal injuries to a child accrues at birth: 4 Restatement, Torts, Sec. 869.