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WEST v. MCCOY

August 20, 1958

WALTER B. WEST, ADMINISTRATOR OF THE ESTATE OF BABY CHILD (UNNAMED) WEST, DECEASED, PLAINTIFF-RESPONDENT,
v.
C.L. MCCOY AND CURTIS CATOE, DEFENDANTS-APPELLANTS.



The opinion of the court was delivered by: Taylor, Justice.

August 20, 1958.

This appeal arises out of an action for the wrongful death of an unborn child, said action being brought under Section 10-1951, Code of Laws of South Carolina, 1952, which reads as follows:

"Whenever the death of a person shall be caused by the wrongful act, neglect or default of another and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable, if death had not ensued, shall be liable to an action for damages, not withstanding the death of the person injured, * * *".

The complaint, omitting immaterial parts, appears as follows:

"3. That Plaintiff brings this action for damages including punitive damages for the wrongful death of the late Baby child (unnamed) West, Plaintiff's child, which wrongful death was caused by one or more or all of the reckless, willful, careless, negligent and wanton acts or delicts of the Defendants, as is hereinafter specifically set out.

"5. That as a direct result of the above described collision the following occurred: Mrs. West experienced internal cramps shortly after the accident and early the next morning vaginal bleeding began. Upon the advice of her doctor Mrs. West went to bed and remained until she went to the hospital. The bleeding and cramps continued. She began to run temperature and experienced swelling of her abdomen. She continued to feel the fetal movements of the child until about June 1, having first felt the child around May 1 when she was about four and one-half months pregnant. On about June 15, 1957, Mrs. West's condition became so bad that she was taken to the hospital where on June 17, 1957, she suffered a miscarriage. Prior to the wreck, Mrs. West had experienced no difficulty with her pregnancy.

"6. That said miscarriage was proximately, directly and solely caused by the negligent, careless, willful, unlawful, reckless and wanton acts of Defendant C.L. McCoy, driver of the said automobile owned by Defendant, Curtis Catoe, in the manner hereinbefore described and in the following particulars, to wit: * * ."

Appellant demurred to the foregoing complaint upon the grounds that "it appears on the face thereof that the Complaint does not state facts sufficient to constitute a cause of action, and that the Plaintiff has no legal capacity to sue."

The demurrer was overruled, and this appeal presents for the first time before this Court the question of whether or not an action will lie for the wrongful death of an unborn child, which is quick and capable of moving in its mother's womb.

The weight of authority supports the rule that in absence of a statute, a prenatal injury affords no basis for an action for wrongful death by the parents or personal representative of a child. This is true where a statute giving the right of action for the wrongful death is construed as conferring such right only where the injured person could himself have maintained an action for damages had he lived and a child so injured is regarded as having no right of action. 16 Am. Jur. 56, Sec. 75.

"It is a general rule of law that in the absence of a statutory provision (this State has no such statute) requiring a different result, a prenatal injury affords no basis for an action in damages in favor of the child. The doctrine of the civil law and the ecclesiastical and admiralty courts that an unborn child may be regarded as in esse for some purposes, when for its benefit, has been characterized as a legal fiction not indulged in by the courts to the extent of allowing an action by an infant for injuries occasioned before its birth. A reason advanced for this rule is that there is no person in being at the time of the accident to whom the defendant owes a duty of care. There is, however, some difference of opinion on the question." 52 Am. Jur. 440, Sec. 98.

The 1958 Supplement to this Volume, Page 32, sets forth:

"* * * Some comparatively recent decisions, indicative of a more liberal and realistic approach to the problem, support the view that an unborn child, viable and capable of existing independently of its mother when injuries are wrongfully inflicted upon ...


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