From Casetext: Smarter Legal Research

Porter v. Lassiter

Court of Appeals of Georgia
Feb 18, 1955
91 Ga. App. 712 (Ga. Ct. App. 1955)

Summary

recognizing a wrongful death suit where the infant was born dead, but was "quick" at the time of the injury

Summary of this case from Fulford v. ITT Rayonier, Inc.

Opinion

35484.

DECIDED FEBRUARY 18, 1955. REHEARING DENIED MARCH 18, 1955.

Action for damages. Before Judge Atkinson. Chatham Superior Court. October 22, 1954.

Pierce Ranitz, for plaintiff in error.

Kennedy Sognier, contra.


The court did not err in overruling the demurrers to the petition, for the reasons given in the body of the opinion.

DECIDED FEBRUARY 18, 1955 — REHEARING DENIED MARCH 18, 1955.


The present case is before this court on a bill of exceptions by W. A. Porter, individually and trading as W. A. Porter Trucking Company (hereinafter called the defendant), to a judgment of the Superior Court of Chatham County, Georgia, overruling his general demurrer to a petition filed by Mrs. Betty Jean Lassiter (hereinafter called the plaintiff), and to a judgment of the Superior Court of Chatham County overruling the renewal of his general demurrers and his additional general demurrers filed to the amended petition of the plaintiff.

The plaintiff filed in the Superior Court of Chatham County, Georgia, her petition seeking damages against the defendant. In her petition, the plaintiff set forth that the defendant, through his agent, was operating a truck on certain streets in the City of Savannah on September 8, 1953, and the truck collided with the automobile in which plaintiff was a passenger; that the plaintiff was thrown into the rear of the front seat of the automobile in which she was riding, and that in the collision she struck other parts of the vehicle. At the time this accident occurred, it is alleged that the plaintiff was carrying an unborn baby and had undergone normal pregnancy up until the time of the accident. She was carried to a hospital in Savannah where she received emergency treatment. On December 9, 1953, Mrs. Lassiter miscarried and aborted a four and one-half month old baby. The baby was born dead. After the death of the child, surgery was performed on the plaintiff and the placenta was removed. This placenta, upon being examined, showed an area of previous pathology. It is claimed that the accident in which the plaintiff was involved resulted in an injury to the placenta, or afterbirth, which in turn caused the death of the child. The petition then alleges a number of grounds of negligence on the part of the defendant. The plaintiff asks for a judgment against the defendant in the amount of "one hundred thousand dollars for the death of her child."

Counsel for both parties agree that the above is a substantial statement of the necessary facts in the case.

The special grounds of the demurrers are not argued and are, therefore, considered as abandoned.


The question here to be determined is whether or not, under the allegations of the petition, the plaintiff is entitled to recover the full value "for the death of her child" when the death is caused by injury prior to birth. Both counsel for the plaintiff and counsel for the defendant cite many cases pro and con concerning the issue. We have reviewed them as called to our attention by both parties. The Judge of the Superior Court of Chatham County in passing on the demurrers evidently put much time and thought in the judgment overruling them. We cannot improve on it as it was set out, and therefore set out his judgment herewith, and follow it because we think it is eminently correct in every respect concerning the petition and the demurrers. It reads: "Judgment of Court: This is a suit brought by Mrs. Betty Jean Lassiter against W. A. Porter, et al., for the homicide of her unborn child in an automobile collision on September 8, 1953. Mrs. Lassiter was riding as a guest of Mrs. Juanita E. Kellam who was driving the car. Mrs. Lassiter was thrown from her seat in the car. She was injured in the lower abdominal regions, was attended by physicians, and was ordered to a hospital on September 24, 1953. Mrs. Lassiter was then pregnant, and in her treatment a consultation was later had between Dr. D. L. Brawner and Dr. W. L. Salter to determine whether to take the child from the womb and end the pregnancy. It was decided Mrs. Lassiter should follow a course of treatment directed towards trying to save the child and she was treated with that end in view.

"On December 2, 1953, Mrs. Lassiter was taken ill at her home and was entered as a patient at Telfair Hospital. On December 9, 1953, Mrs. Lassiter miscarried and a 4 1/2 months' old baby was aborted. The baby was dead upon birth. The death was attributed to the failure of the placenta or after-birth to follow the child as is necessary.

"Upon being examined the placenta showed an area of previous pathology. The accident above mentioned with the resulting injury to the placenta or after-birth, is alleged to have caused the untimely and regrettable death of the child.

"According to the allegations of the petition it appears that Mrs. Lassiter was 1 1/2 months pregnant at the time of the accident. The miscarriage and death of the child occurred on December 9, 1953, and at that time she was 4 1/2 months pregnant.

"The main question in this case is whether or not the plaintiff may sue for the homicide of a child in ventre sa mere, and to what extent an unborn child must be developed before a mother can sue for the value of the life of her child.

"The suit must be based upon the acts of 1952, p. 54, Code section 105-1307, Supp., as follows: `A mother, or if no mother, a father, may recover for the homicide of a child, a minor or sui juris, unless said child shall leave a wife, husband or child. The mother or father shall be entitled to recover the full value of the life of such child . . .

"So far as the question under consideration is concerned, the determination of the meaning of the word `child' as used in this section is a necessary element.

"A parent could not recover for the homicide of an unborn child, or an infant, in Georgia, until the law, the act of 1952 (Georgia Laws 1952, p. 54) was passed. The previous law required that the child be able to contribute to the support of the parent.

"Decisions from other states are in conflict on the question of when a child `in ventre sa mere' should be considered a `child'.

"Some decisions consider that upon the formation of the foetus by conception, the foetus is then a child. Others, including Georgia, have held that a foetus becomes a child when it is `quick' or capable of moving in its mother's womb. Others hold that it becomes a child when it is `viable', capable of life and organic development independent of its contact with the mother. And others hold that the foetus does not become a child until it is actually born.

"In Georgia this court finds that in prosecutions for foeticide, the wilful killing of an unborn child so far developed as to be ordinarily called `quick', is considered as murder. Code section 26-1103.

"If the child is not `quick', the offense is a misdemeanor (Sec. 26-1102) unless done to save the life of the mother.

"In Summerlin v. State, 150 Ga. 173, 176, (Gilbert J.), the Supreme Court stated the words `where a woman is pregnant with child' means an `unborn child so far developed as to be quick — so far developed as to move or stir in the mother's womb,' and cited Taylor v. State, 105 Ga. 846; Sullivan v. State, 121 Ga. 183 (2); Barrow v. State, 121 Ga. 187 (5). These decisions were written in connection with the criminal statute.

"In Tucker v. Carmichael, 208 Ga. 201, 203-4, this honorable court in a civil case held:

"`1. A petition of a child, seeking damages for a prenatal injury resulting from negligence of the defendant in carrying its mother to the hospital, where it was born in slightly more than three hours after the injury, alleged a cause of action and the court erred in sustaining a demurrer thereto and dismissing the same.' On page 203, the court stated: `. . . it is seen that Blackstone says that, in contemplation of the common law, life begins when the child is able to stir in the mother's womb.' Judge Duckworth in the Tucker case said further: `An examination of the decisions of the other jurisdictions disclosed that those courts are in disagreement as to the common law, each asserting, without supporting the assertion with any convincing authority, that their respective conflicting holdings on this question are in accord with the common law.' The Tucker case was discussed by D. R. Cumming, Jr. of the University of Georgia Law Division, Editorial Board, published in the Georgia Bar Journal, November 1951, p. 249, and sustains our thought, although he thinks it is with the minority group. In the Maryland case written about the same time as the Tucker case, 79 A.2d 550, the views here given are discussed in a well considered case. They are also discussed in 10 A.L.R. 2d, 639-40 pro and con and in cases and commentaries cited by counsel for both plaintiff and defendant.

"This court has great respect for the Supreme Court of Georgia and wishes to follow the distinguished judges who wrote the Georgia decisions and the Georgia law quoted above.

"On the questions here considered the court reaches the following decisions:

"1. That a suit may be maintained by the mother for the loss of a child that was `quick' in her womb at the time of the homicide.

"2. The court does not believe that a cause of action arose if the child was not `quick' at its death. The court does not believe it necessary for the child to be `viable' provided it was `quick', that is `able to move in its mother's womb.'

"3. Another question that arises is whether the cause of action in this case arose on the date of the automobile injury to the mother, or on the date of the death of the child.

"The plaintiff could not sue for the homicide of the child on the date of the automobile collision since the homicide (death) was essential to the filing of the suit. The court is of the opinion that the cause of action dates from the death of the child which, according to the petition, was 4 1/2 months after conception.

"4. The question of when a child, in a given instance, is `quick' is a question of fact for a jury to determine.

"Order on general and special demurrers: The discussion above will control the case made on general demurrer. The court believes the case is well pleaded and is not subject to any of the special demurrers. The court thereupon overrules the general demurrer and overrules the special demurrers and all the grounds thereof. And it is so ordered.

"Done in open court this 1 day of October, 1954. [Signed] D. S. Atkinson, Judge Superior Court, E. J. C. of Ga."

Hence it is our judgment that the judge of the superior court did not err in overruling the demurrers.

Judgment affirmed. Townsend and Carlisle, JJ., concur.


Summaries of

Porter v. Lassiter

Court of Appeals of Georgia
Feb 18, 1955
91 Ga. App. 712 (Ga. Ct. App. 1955)

recognizing a wrongful death suit where the infant was born dead, but was "quick" at the time of the injury

Summary of this case from Fulford v. ITT Rayonier, Inc.

recognizing a cause of action where the fetus had quickened

Summary of this case from Lollar v. Tankersley

construing Ga. Code Ann. §§ 26-1102, 26-1103, which allowed parents to recover for the homicide of an unborn child "so far developed as to be ordinarily called `quick,'" or capable of moving in its mother's womb

Summary of this case from Santana v. Zilog, Inc.

In Porter v. Lassiter, 91 Ga. App. 712, 87 S.E.2d 100 (1955), the Court of Appeals of Georgia pronounced its belief that a cause of action for wrongful death may accrue at the point a fetus is "quick," i.e., able to stir in its mothers womb.

Summary of this case from Santana v. Zilog, Inc.

allowing parent to recover for the “homicide of a child” when “child” is statutorily defined as a fetus that is “ ‘quick’ or capable of moving in its mother's womb”

Summary of this case from Carranza v. Carranza-Sanchez

allowing a cause of action if the fetus was "quick" in the womb

Summary of this case from PINO v. U.S.

In Porter v. Lassiter, 91 Ga.App. 712, 87 S.E.2d 100 (1955), the court rejected viability and determined that the child's life begins when it is "quick", that is it moves in the mother's womb. Another court, in Smith v. Brennan, 31 N.J. 353, 157 A.2d 497 (1960) gave a lengthy review of the medical and legal history up to that point, and rejected viability as "impossible of practical application.

Summary of this case from Com. v. Morris

In Porter the court confronted the questions on recovery for "the full value `for the death of her child' when the death is caused by injury prior to birth" and "to what extent an unborn child must be developed before a mother can sue for the value of the life of her child."

Summary of this case from 66 Federal Credit Union v. Tucker

allowing recovery for the death of an unborn child "so far developed as to be ordinarily called `quick'" or capable of moving in its mother's womb

Summary of this case from 66 Federal Credit Union v. Tucker

In Porter v. Lassiter, 91 Ga. App. 712, 716-17, 87 S.E.2d 100, 103 (1955), a Georgia court of appeals recognized that a cause of action exists after the fetus has "quickened," or movement occurs within the womb.

Summary of this case from Wiersma v. Maple Leaf Farms

In Porter v. Lassiter, 91 Ga. App. 712, 87 S.E.2d 100 (1955), the court recognized the right of a "quick" child (capable of movement within the womb) to maintain a wrongful-death action, even if not viable. Our holding in Presley has also been cited for the contention that viability is irrelevant when a fetus dies in utero.

Summary of this case from Miccolis v. Amica Mut. Ins. Co.

In Porter v. Lassiter, 91 Ga. App. 712 (87 S.E.2d 100) (1955), the rule of Tucker was applied in an action by the mother suing for the wrongful death of the child.

Summary of this case from McAuley v. Wills

In Porter v. Lassiter, 91 Ga. App. 712, 87 S.E.2d 100 (1955), a mother allegedly one and a half months pregnant suffered an injury which she claimed caused a miscarriage three months later.

Summary of this case from Stokes v. Liberty Mutual Insurance Company

applying the "quickness" test which allows maintenance of a wrongful death action if the fetus is "quick" or capable of movement in the womb

Summary of this case from Egan v. Smith
Case details for

Porter v. Lassiter

Case Details

Full title:PORTER v. LASSITER

Court:Court of Appeals of Georgia

Date published: Feb 18, 1955

Citations

91 Ga. App. 712 (Ga. Ct. App. 1955)
87 S.E.2d 100

Citing Cases

66 Federal Credit Union v. Tucker

Six states allow recovery for a non-viable fetus that dies while still in the womb. Id.SeePorter v.Lassiter,…

Toth v. Goree

Roe v Wade, 410 U.S. 113, 160; 93 S Ct 705; 35 L Ed 2d 147 (1973). The only exception to the above limits in…