Worgan v. Greggo & Ferrara, Inc., 50 Del. 258 (Del. 1956)

Layton, J.:

In my first opinion upon this subject, I concluded that the administrator of a viable infant killed by negligence had no right of action against the wrongdoer. A motion for reargument was filed and granted, and after a thorough reexamination of the rapidly growing list of recent decisions to the contrary, I have decided that the weight of modern authority is in favor of such a cause of action.

The early decisions, headed by Dietrich v. Inhabitants of Northampton, 1884, 138 Mass. 14 denied recovery. In the cited case, Justice Holmes then speaking for the Supreme Judicial Court of Massachusetts held that a child en ventre sa mere was a part of its mother having no separate existence and was not entitled to sue through an administrator for injuries leading up to its death. A number of jurisdictions later came to the same conclusion. Walker v. Great Northern Railway (1891) 28 L. R. Ireland 69; Allaire v. St. Luke’s Hospital, 1900, 184 Ill. 359, 56 N. E. 638, 48 L. R. A. 225; Gorman v. Budlong, 1901, 23 R. I. 169, 49 A. 704, 55 L. R. A. 118; Buel v. United Railways Co., 1913, 248 Mo. 126, 154 S. W. 71, 48 L. R. A., N. S., 625; Stanford v. St. Louis-San Francisco R. Co., 1926, 214 Ala. 611,108 So. 566; Magnolia Coca Cola Bottling Co. v. Jordan, 1935, 124 Tex. 347, 78 S. W. 2d 944, 97 A. L. R. 1513; Newman v. City of Detroit, 1937, 281 Mich. 60, 274 N. W. 710; Berlin v. J. C. Penney Co., 1940, 339 Pa. 547, 16 A. 2d 28; Stemmer v. Kline, 1942, 128 N. J. L. 455, 26 A. 2d 489, 684; Drobner v. Peters, 1921, 232 N. Y. 220, 133 N. E. 567, 20 A. L. R. 1503. It now appears, however, that the St. Luke’s Hospital case and the Buel and Drobner decisions have been overruled. Thus, there remain but eight jurisdictions which presently deny recovery in such a case.

To the contrary, recent decisions of twelve jurisdictions have served to transform what was, until 1950, the heavy majority into the minority view. The citations of these cases follow:

Amann v. Faidy, 1953, 415 Ill. 422, 114 N. E. 2d 412; Bonbrest v. Kotz, D. C., 1946, 65 F. Supp. 138; Verkennes v. Corniea, 1949, 229 Minn. 365, 38 N. W. 2d 838, 10 A. L. R. 2d 634; Jasinsky v. Potts, 1950, 153 Ohio St. 529, 92 N. E. 2d 809; Woods v. Lancet, 1951, 303 N. Y. 349, 102 N. E. 2d 691; Damasiewicz v. Gorsuch, 1951, 197 Md. 417, 79 A. 2d 550; Tucker v. Howard L. Carmichael & Sons, Inc., 1951, 208 Ga. 201, 65 S. E. 2d 909; Steggal v. Morris, 1953, 363 Mo. 1224, 258 S. W. 2d 577; Tursi v. New England Windsor Company, 1955, 19 Conn. Sup. 242, 111 A. 2d 14; Mallison v. Pomeroy, 1955, 205 Or. 690, 291 P. 2d 225; Rainey v. Horn, 1950, 221 Miss. 269, 72 So. 2d 434; Mitchell v. Couch, Ky. 1955, 285 S. W. 2d 901.*

Nearly all these Courts repudiate the theory of the Dietrich case to the effect that a viable foetus is part of its mother and has no separate existence apart from her body. All of them hold that a viable foetus injured or killed by the negligence of another is entitled to sue either on its own behalf or through an administrator, depending upon whether it survived the accident. Leading text writers have also condemned the rationale of the Dietrich case. Thus, Prosser, Law of Torts, (2d Ed.) 1955, p. 174, has this to say:

many of them overruling former holdings, have held that an infant bom alive may maintain an action for prenatal injuries, and that an action for wrongful death will lie where it dies as a result of such injuries after birth. The reversal is so definite and marked as to leave no doubt that this will be the law of the future in the United States.”

See also Virginia Law Review, P. 611 (1950); 48 Michigan Law Review, P. 539 (1949-1950)', and the case notes from 63 Harv. L. Rev. 173 (1950) and 35 Corn. L. Q. 648 (1949-50).

So numerous and recent have been these authorities that I am convinced that I should rescind the Order entered on November 16. Accordingly, defendant’s motion for summary judgment is denied. By stipulation of counsel, defendant’s motion to strike is granted.