First Department, January, 1921. [Vol. 194. The question raised by the demurrer and now to be determined by this court is as to whether or not the plaintiff can recover damages herein for the injuries which he claims were sustained by him prior to his birth as the result of the negligence of the defendant. The plaintiff was born on April 28, 1919, eleven days after the accident above described. There can, therefore, be no question that plaintiff's mother, at the time she fell into the coal hole, was quick with child. The question as to whether a person may recover damages for injuries sustained prior to birth as the result of the negligent act of another has never been authoritatively determined by the courts of this State, although the question involved has been several times before the courts. It is the contention of the appellant that at the time of the injury complained of plaintiff was not a being in esse and, therefore, was not a living entity capable of being injured through an act of negligence so as to give rise to a cause of action after birth. If the appellant is correct in such contention, no act of negligence, no matter how gross, which affects an unborn child so as to cause deformity at and after birth, is actionable. I think the great weight of judicial authority has established that for all purposes beneficial to the infant after his birth an infant en ventre sa mere shall be considered to be born. It has frequently been held that an unborn child has extensive rights and important privileges which can be protected by the courts. A child en ventre sa mere has been considered in esse for the purpose of assuring the valid limitation of estates. (Long v. Blackhall, 7 Durn. & East, 100.) Such an infant is entitled to have a guardian appointed for it. (Marsellis v. Thalhimer, 2 Paige, 35.) An estate may be given or bequeathed to it or to another person for its life. v. Woodford, 4 Ves. Jr. 227-343.) Upon the father by the negligent act of another occurring prior to the child's birth, the latter may recover for the injury sustained (The George & Richard, L. R. 3 Adm. 466), which case was approved in Quinlen v. Welch (69 Hun, 584). Similar rights are exhaustively discussed by Chief Judge O'BRIEN in the case of Walker v. Great Northern R. Co. (28 L. R. Ir. 69). The (Thellusson death of a App. Div.] First Department, January, 1921. case last mentioned is quite similar to the one at bar, the injury claimed to have been suffered by the child having been caused by the alleged negligence of the defendant railroad. The court, however, held in that case, inasmuch as the defendant's liability was based upon contractual relationship, that no such relationship could exist between the defendant and the unborn child. In his very exhaustive opinion Chief Judge O'BRIEN cites the numerous authorities on the rights of children en ventre sa mere, and strongly suggests that in his opinion the plaintiff in that case would have a right of action were it not for the absence of a contractual relation with the defendant railroad. In Thellusson v. Woodford (4 Ves. Jr. 322) Justice BULLER says: "Let us see what this non-entity can do. He may be vouched in a recovery, though it is for the purpose of making him answer over in value. He may be named executor. He may take under the Statute of Distributions. He may take by devise. He may be entitled under a charge for arresting persons. He may have an injunction, and he may have a guardian.' In Wallis v. Hodson (2 Atk. 117) Lord HARDWICKE says: "The principal reason I go upon in the question is, that the plaintiff was en ventre sa mere at the time of her brother's death, and consequently a person in rerum natura, so that, by the rules of the common and civil law, she was to all intents and purposes a child as much as if born in the father's lifetime." In this same case Lord HARDWICKE notes that under the civil law the reason for the rule is that it is necessary to adopt it whenever it is for the benefit of the child to be considered as born, but he states the rule to be "that such child is to be considered living to all intents and purposes." In Doe v. Clarke (2 H. Black. 399) it is said that "wherever such consideration would be for his benefit, a child en ventre sa mere shall be considered as absolutely born." Justice BULLER in Thellusson v. Woodford (4 Ves. Jr. 227, 323) says: "Why should not children en ventre sa mere be considered generally as in existence? They are entitled to all the privileges of other persons. In the case of The George & Richard (supra) Sir ROBERT PHILMORE held that a child en ventre sa mere was a child within the meaning of Lord Campbell's Act (9 & 10 Vict. chap. 93) First Department, January, 1921. [Vol. 194. so as to be capable when born of maintaining an action in respect of the pecuniary loss sustained by the death of its father owing to the wrongful act of others done whilst it was in the womb. Among the more recent cases which recognize the entity of an unborn child are the following: Herndon v. St. Louis & S. F. R. Co. (128 Pac. Rep. 727), in which it is held: "A child unborn at the time of his father's death, but later born alive, is to be considered under our laws as an existing person at the time of his father's death, and, therefore, a beneficiary and entitled to participate under the statute in any recovery of damages for the wrongful death of the father." In Galveston, H. & S. A. R. Co. v. Contreras (72 S. W. Rep. 1051) it was held that in an action by a posthumous child for damages sustained by reason of his father's death, caused by defendant's negligence, the fact that the mother and other children have recovered damages for such death is immaterial. 6 In Cooper v. Heatherton (65 App. Div. 561) Mr. Justice JENKS says, in discussing the status of an unborn child: "In Stedfast v. Nicoll (3 Johns. Cas. 18) KENT, J., notes 'a late case' (Doe v. Clarke, 2 H. Black. 400) where the court go so far as to say that it is now settled that an infant en ventre sa mere shall be considered, generally speaking, as born, for all purposes for his own benefit.'" Blackstone thus enunciates the rule: "Life is the immediate gift of God, a right inherent by nature in every individuai; and it begins in contemplation of law as soon as an infant is able to stir in the mother's womb." (1 Black. Com. 129.) There can be no doubt but that the courts have always recognized the fact that a child en ventre sa mere is an entity not only entitled to the recognition but to the protection of the courts. So far as I have been able to discover, the courts of our State have on only one occasion considered the right of an injured person to bring an action to recover damages for injuries inflicted prior to birth. In the case of Nugent v. Brooklyn Heights R. R. Co. (154 App. Div. 667) the precise question here involved was passed upon. Nugent was an infant who was injured thirty-six days before his birth through the negligence of the defendant railroad. At the time the App. Div.] First Department, January, 1921. alleged act of negligence occurred the plaintiff's mother was upon a car controlled by the defendant. While alighting therefrom she was severely injured, resulting in the deformity of the plaintiff. It was necessary for the court in the Nugent case to determine two questions: First, as to whether or not an action will lie by one claiming to have been injured prior to birth through the negligent act of another; and, second, whether the plaintiff had a right of action against the defendant as a common carrier. The opinion was written by Mr. Justice THOMAS and is very exhaustive and illuminating. The court held that a child en ventre sa mere is in existence and is entitled to the protection of his person as well as his property, and that there is no reason why such a child who has received personal injury and is born deformed should not have a right of action against the person or corporation which caused the injury. The argument of Mr. Justice THOMAS is very clear and is, in part, as follows: "It would be no answer to the trespasser that the child was concealed in the mother's womb. The wrongful act initiated by the assailant would reach the child, and it might result in tortious contact with any third person, although that was not within the purpose of the actor. So, if a tort be an act of negligence, the remedy is not confined to the person next to the act in sequence. But it may be answered that an unborn child is not an entity. Hence, a trespass upon it does not invade the personal rights of a human being so as to admit of a civil remedy at its instance after birth. And so it is argued in effect that an unborn child is not a member of political society so as to be related to others engaged in any of the activities or subject to any of the conditions of life. From this it would be argued that no person actually born owes an unborn any duty of which there can be a culpable breach. That is, none of the rights of the person attach to him because he is not a person. * * * An unborn child has, conditioned upon its birth, usual rights of property, and the remedies that pertain to them for actionable injuries inflicted before his birth. The being that owns is the supreme consideration and has capacity for ownership. What is owned and the right to own are merely incidental to the living entity. And yet, shall the incidents be valued in legal cognizance and the owner not? But when, in legal apprehension for the First Department, January, 1921. * [Vol. 194. purposes of property rights, does the entity begin? And what are its capacities? It is sufficient for present purposes to state that it begins before birth, and that it has all the capacities of born persons to receive property, and after birth to enjoy it, and redress pre-natal injuries to it. It is not helpful to characterize its existence as fictitious as to property rights. The rights are accorded to it. The indisputable fact is that one is answerable to the criminal law for killing an unborn child who to that end is regarded as in esse, and the further fact is that the unborn child, so far as the property interests are concerned, is regarded as an entity, a human being with the remedies usually accorded to an owner. But the argument then proceeds that one must respect the rights of ownership, and, so far as a civil remedy is concerned, disregard the safety of the owner. In such argument there is not true sense of proportion in the protection of rights. The greater is denied; the one lesser and dependent on the very existence of a person in esse and entitled to protection is respected." The learned justice then quotes from O'BRIEN, J., in Walker v. Great Northern R. Co. (28 L. R. Ir. 69), as follows: "The pity of it is as novel as the case that an innocent infant comes into the world with the cruel seal upon it of another's fault, and has to bear a burthen of infirmity and ignominy through the whole passage of life,' and he adds: 'I would not myself see any injustice in the abstract in such an action being held to lie, or in the risks of a carrier being extended to the necessary incidents of nature,' although he considered, 'on what a boundless sea of speculation in evidence this new idea would launch us.'" Commenting upon the above language of Judge O'BRIEN, Mr. Justice THOMAS in Nugent v. Brooklyn Heights R. R. Co. (supra) aptly says: "In my view, justice should not be turned aside and wrongs go without remedies because of apprehension of what may happen in jurisprudence if it be decided that an unborn child has some rights of the person." The court having held that the plaintiff in that case had rights of person before birth entitled to protection and giving him a right to sue the person or corporation injuring him, then took up the question of the liability of the defendant railroad as a common carrier to the plaintiff while en ventre |