Appeal, No. 124, Jan. T., 1960, from order of Court of Common Pleas of Chester County, March T., 1959, No. 49, in case of Rebecca Montgomery Sinkler et al. v. Thomas J. Kneale, also known as Thomas J. Kneale, Jr. Order reversed.
G. Clinton Fogwell, Jr., with him Albert W. Laisy, and Reilly and Fogwell, for appellant.
William H. Mitman, with him Stively and Mitman, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE BOK
Preliminary objections were filed and sustained to a complaint by a child, per her father as natural guardian, alleging that as the result of prepartum injuries she was born Mongoloid.
The suit embraces four plaintiffs - father, mother, thirteen-year-old daughter, and the Mongoloid child. The mother was driving her car with her daughter as passenger and at the time was one month pregnant with the infant plaintiff. She and the older daughter were injured when defendant's car, according to the complaint, negligently struck the mother's car in the rear.
The claims of the three older persons are pending, the Mongoloid infant being the sole appellant after her right of action was denied her.
The lower court felt bound by Berlin v. J. C. Penney Co., Inc., 339 Pa. 547 (1940), 16 A.2d 28. This is a short opinion of less than a page and relies on 4 Restatement, Torts, § 869, and on four cases, each from a foreign jurisdiction: Drobner v. Peters, 232 N.Y. 220 (1921), 133 N.E. 567; Dietrich v. Northampton, 138 Mass. 14 (1884), 52 Am.Rep. 242; Ryan v. PSCT, 18 N.J.Misc. 429 (1940), 14 A.2d 52; Allaire v. St. Luke's Hosp., 184 Ill. 359 (1900), 56 N.E. 638.
The Berlin case was the first appellate expression in Pennsylvania on the subject of injury sustained en ventra sa mere but there have been four lower court decisions, one before and three after Berlin: Kine v. Zuckerman, 4 Pa.D. & C. 227 (1924); Jacketti v. Pottstown Rapid Transit Co., 67 Montg.Co. 37 (1950); Rimpa v. Sears Roebuck & Co., 37 Erie 267 (1953); and VanElbe v. Studebaker-Packard Corp., 15 Pa.D. & C.2d 635 (1958). The Kine and VonElbe cases upheld the right of action, while the Jacketti and Rimpa cases followed Berlin, although in Rimpa the court said that it would in all likelihood have taken the other view if the question had been open.
By now all four jurisdictions on which Berlin relied have reversed themselves and at present uphold the right of action when the child is born alive: Woods v. Lancct, 303 N.Y. 349 (1951), 102 N.E.2d 691; Amann v. Faidy, 415 Ill. 422 (1953), 114 N.E.2d 412; Smith v. Brennan and Galbraith, 31 N.J. 353 (1960), 157 A.2d 497; and Keyes v. Construction Service, Inc., Mass. , 165 N.E.2d 912 (1960).
The parent case, both in this country and in England, is the Massachusetts decision first above cited, Dietrich v. Northampton, where Judge HOLMES in 1884 denied the right of action. He not only found no common law doctrine against it but felt it necessary to find some opposition to a statement by Lord Coke in
the criminal law which is repeated by IV Blackstone's Commentaries, p. 198: "To kill a child in its mother's womb is now no murder, but a great misprision: but if the child be born alive and dieth by reason of the portion or bruises it received in the womb, it is murder in such as administered or gave them."
Even if the criminal law is faint authority for a tort, the foregoing must show at least that the common law offers no bar to the suit. Judge HOLMES' real point d'appui for decision was that the unborn child was part of its mother. This was undoubtedly the medical view accepted by the law at the time, and it is precisely the view that has altered since.
The case has been effectively overruled by Keyes v. Construction Service, Inc., supra, decided April 4, 1960, where the Supreme Judicial Court of Massachusetts said: "We think it advisable that in respect to the subject of prenatal injury the law of this Commonwealth should be in general in harmony with that of the large and growing proportion of the other States. ... There is no need to reverse the Dietrich decision which doubtless was right when rendered but we ...