*1 487 Dаy is without merit. Nationwide Mutual Insurance Co. v. 564, 140 Ind. 224 N. E. 2d Ind. Dec. attempting point to make his the evidence without conflict as set-off, points to his to a he to what he contends is sub-Con- uncontradicted evidence that specifications. ignores tractor failed to meet But he pavement evidence that the defect in the resulted from inadequate compaction parking lot sub-base appellant-contractor. We, therefore, say, cannot must as we negative we are to reverse this judgment, evi- “the dence is without conclusiоn, conflict and can lead to but one and the trial court has opposite reached an conclusion”. Pokraka v. Lummus Co. 523, 532, 230 Ind. E.N. 669; 2d Losche & Sons v. Williams & Associates App. 392, 395, 2d N. E. appellee persuasive plea has made a in his brief for attorney’s an additional attorney’s fee for his services appeal; however, this petitioned he has neither court nor the trial court for an allowance, such nor has he shown authority guide us or standard to us. On stands, grant record as it we cannot the addi- suggested. tional relief
Judgment affirmed.
Hoffman, J., Sharp C. Staton, JJ., сoncur. Reported in 276 N. E.
Note. —
Kenneth Britt v. Woodrow W. Sears. [No. 1971, Rehearing 371A41. Filed December February denied 2, 1972. September Transfer denied 1972.] *2 counsel, Hovde, Townsend, Boyd Townsend, F. Hovde & Indianapolis, appellant. Kitley, Brown, Schreckengast, Edward E. William O. Schreckengast Grove, appellees. Davis, Beech & appeal is question presented in this J. The sole
White, may be dismiss, an action to against motion whether, as stillborn death of by a for the father maintained inde- capable healthy male alleged full be “a term to time “was ... mother [at life” pendent pregnant.” and one week injury] months nine its fatal predicated involved action herе on which statute which, 1967) (Burns 2-217 34-1-1-8, Ind. Ann. Stat. § IC provides: part, pertinent . . . death an action maintain “A father . . of child ....” Trial plaintiffs complaint under dismissed the
The trial court upon which relief a claim (B) (6) for failure state Rule reviewing granted.1 purposes For the could ruling assume that court’s we must and do trial plaintiff’s complaint allegations in are true.2 quoted question complaint (in of whether the the words hereof) in the describes a child within first sentence meaning quoted answered above has not been statute by legislative reported prior enactment nor dеcision have no which to Indiana state court.3 Thus we rule appeal. want of a furnishes decide this But law follow refusing excuse for make a decision. When there is no rule jurisprudents one, or, to follow the court must make as some prefer, “discover” one.4 claims, I, complaint asserts Count the claim here involved 1. The two services, II, husband’s claim for of his wife’s it etc. loss and Count judgment pro- only, making without final I, dismissed Count (B). Appellee question did not *3 Rule 54 raise in Trial
vided ruling. question appealability of counsel at After the attention was called to the by argument supplemental entry oral the trial court (B) duly Therefore, pur- pursuant certified TR 54 4 was to court. to 1, 1972, (E)) (B) (after Jan. AP 4 we treat the dismissal to AP suant of judgment. appealable an final I Count as Thus, only Harvey, 605: not 1 INDIANA PRACTICE we 2. See descriptive the facts of the stillborn child at the the fatal the truth assume injury but also the conclusion that it was stillborn as time of negligence. proximate of defendant’s result the (N.D. Schulty Stecy 198, 1967), Supp., F. 11 Ind. Dec. v. Beamer, anticipating Judge “Indiana that courts would not U.S. District allow by child,” recovery stillbirth dismissed the authority, citing suggested, Indiana without the mothеr father but by caused her mental distress “loss the child.” recover could expense. parents’ burial Nothing said mainly judge Law, “Again, function not declare by deciding Suppose questions question peace controversies. but maintain decided, —and such up never been are more has which comes lawyers suppose, judge generally persons —the frequent not than must whim, somehow; properly he wish to decide it not on will case decide the lays acceptance principle, down rule which meets and he some on but way. courts, are decided in the same future cases That rule with rights parties yet and duties of the were Law, not known is the way by parties That is the them. not knowable are treated to and were and have courts; juggling say it is solemn treated to be undiscoverable, finally Law, which is undiscovered deter- the mined ways separated only by two opposite in communities an artificial 490 usually judges instances,
As do like look to we opinions juris decisions and of courts in other common law reaching many opinions There dictions. we find well reasoned opposite рresent appears ques conclusions. At the it time *5 opinion tions almost identical ours* have been answered twenty-four published the United and the District States states, In sixteen of of Columbia. those and in the District of states, Columbia, eight held it has been that an action lies. In it has been held no action be maintained.6 two- This majority itself, impressive is, quite to -one but decisive. not early reported cases in the United States dealt question with the death before birth but boundard, eternity.” Gray, has existed both communities from all THE LAW, p. NATURE AND THE SOURCES OF only 5. Not do the statutes differ facts, frоm state to state but particularly period gestation, differ from case to case. (by jurisdiction) reported 6. The cases have allowed the action v. (1966), Hatala Markiewicz Supp. are: CONNECTICUT: 358, 26 Conn. Worgan Greggo 406; v. Ferrara, 224 2d DELAWARE: & A. Inc. 557; (1956), 258, A. 2d Del. 128 DISTRICT OF 50 COLUMBIA: Sim (D.D.C. University 1971), Supp. 529; mons v. Howard 323 F. GEOR (1955), App. 712, 91 100; Lassiter Porter v. Ga. 87 E. GIA: Wendt S. 2d IOWA: Iowa), (1960, Supp. (applying D.C. 182 F. law); v. Lillo 56 Iowa (1962), 143, 1; v. Manion 189 Kan. KANSAS: Hale 368 P. 2d KEN (1955, Ky.), 901; v. Mitchell Couch 285 S. 2d TUCKY: W. LOUISIANA: Light (1951, App.), v. Louisiana Power & Co. Valence La. 50 So. 2d 847; 179, 198 2d (1964), use MARYLAND: State Odham Sherman 234 Md. v. 71; (Mich. 2d O’Neill 1971), A. MICHIGAN: v. Morse 188 N. W. 785; (1949), 365, Verkennes Corniea MINNESOTA: 229 Minn. 38 v. 634; 838, Rainey 10 ALR 2d W. 2d MISSISSIPPI: (1954), N. Horn v. 434; 269, Yup (Nev. 2d NEVADA: 221 Miss. P. 2d N.H. 72 So. White v. 1969), 458 Poliquin 617; HAMPSHIRE: (1957), NEW MacDonald 101 v. 249; 104, v. A. 2d OHIO: Stidam 383, (1959), 135 Ashmore 109 Ohio Ops. 2d 431, 106; N. 2d App. Fowler Woodward Ohio E. SOUTH CAROLINA: 42; S.C. E. 2d S. WEST VIR Panagopoulous (D.C., 1969), v. Martin W. GINIA: Va. Supp. 295 F. 220; Kwaterski v. Farm State Mutual WISCONSIN: Auto Ins. Co. 14, 148 2d W. 34 Wis. N. 2d 107. which have denied Those eases are: CALIFORNIA: Norman v. Murphy (1954), 178; 124 Cal. P. 2d MASSACHU Keyes v. Constr. Service Inc. SETTS: 340 Mass. 165 N. E. *4 Shelly 912; Drabbels (1951), v. Oil Co. 2d NEBRASKA: 17, 155 Neb. 299; Taggert (1964), 2d JERSEY: 303, 50 N. W. NEW v. 43 N.J. Graf 140; Friedberg Endresz (1969), A. 2d NEW YORK: 204 24 N.Y. 2d V. 901; Gay 478, Thompson NORTH 248 N. E. 2d (1966), CAROLINA: v. 425, 394, 983; S. 2d 15 146 E. ALR 3d 266 N.C. Rushing (1953 Okla.), v. OKLAHOMA: Howell 217; 261 P. 2d PENNSYLVANIA: Marko v. Transp. Philadelphia 124, 502; Co. 420 Pa. 216 A. 2d TENNES Hogan McDaniel 235, v. 204 Tenn. 319 SEE: S. W. 2d 221.
491 first injury born alive. The thereafter to a child pre-natal 14, Northampton (1884), Mass. 138 Dietrich v. such case the to have been 242, what is said which iterated 52 R. Am. the part ais the unborn child common law belief that therefore, “person” legally caрable only is, mother who reasoning injury.7 sustaining That thereafter was denying basis, basis, continues to for and in states be some injured has child, birth, pre-natally its live both that a after injuries cause a action for such there is cause of wrongful (as here) death, particularly of action for its birth. since found death occurs before Some states have allowing live-born maintain action reasons for child to damages pre-natal denying injuries, still for while anyone wrongful pre-natal a cause of for a child’s death.8 reported cases in the decide first United States to may question an action be of whether maintained pre-natal child, a death of Verkennes v. Corniea 365, 838, 839,
(1949), 229 38 N. W. 2d 10 2d Minn. A. L. R. rejected 634, 638, premise court the basic Dietrich part mother.” Instead that “the unborn part following quoted approval a words from the Boggs Hospital Justice in Allaire dissent Mr. v. St. Luke’s 370, 638, 359, 641, (1900), 184 56 E. 48 Ill. N. R. 255 L. A. majority (in which the had denied live-born child the pre-natal injuries), to maintain an action for as follows: regarded of the mother well “A in the womb foetus during portion part the bowels of mother as but v. there was YER 43 N.J. 266 N.C. v Harper Cal. Salmond, 7. Faidy Among Note, 349, 303, Friеdberg [1969], 24 2d Torts, 354 James, 629, those 146 S. English 415 Ill. Law and (1971). A. states THE LAW OF P. 2d 2d E. (10th Ed., Stallybrass, 1945), authority 140), 2d 422, 114 “[A] more 678, 682), are California the Unborn North Carolina N.Y. 15 A. N. on either side of the E. TORTS, New L. accurate 2d Child, 46 R. 3d Jersey 412, (Scott (Gay 18.3, p. 983), E.N. statement, v. McPheeters (Graf NOTRE would 2d v. Thompson question.” 901). New York Taggert have been that DAME according See also 2 [1939] Amann [1964], [1966], LAW (Endresz *5 492 gestation; if, period womb, but it of the of in the while prenatal age viability destruction reaches of of when the necessarily of exist- life the mother does not the end its also, when, separated prematurely, ence artificial and and means, human a mother, from the it would be so far grow,
matured as that it live would and mentally but to and and physically, and is generally, other children it deny life, palpable argue a fact to there is but one the life of the mother. Medical science and skill experience period have demonstrated at a of gestation period in advance the parturition, of of the foetus capable independent separate life, though of and that, body mother, merely within the her child separated part is not a body, body may parts her die in all its capable alive, maintaining remain life, when body from the dead mother. If at period bers, injured child so a advanced is in its mem- limbs or living* is born suffering into world from mere injury, sacrificing effects it is not truth to a say theoretical injury abstraction to was not to wholly child, (56 641) but to the mother?” .9 N. E. at opinion concluded: The Verkennes argument plain “It too seems independent that where possible destroyed through wrong- existence and life is a ful act a cause of action arises under the statutes cited.” 841). (38 2d at N. W. recognition an independent unborn But mere child’s everywherе injury, time at is not existence sufficient wrongful give action for cause of its rise death unless dies. permit before it Several the child is born states which living an action injury child to maintain for a tortious deny birth, administrator, parent, suffered before wrongful next to maintain of kin the either a Boggs adopted 9. The rationale of the dissent Supreme century Faidy Court Illinois a half later in the decision of Amann v. E. 2d Ill. N. 418. This later case held that an wrongful lie prenatal injury action would death from a of child reported born alive. We have found for involving Illinois case an аction wrongful death before birth. injury pre-natal action* based on a survival action10 obstacle born alive. Sometimes the the child is first unless wording peculiar survival that state’s death or California where a statute authorized statute as in person person”, a “minor defined as a under for the death of age required years age, calculated from to “be day persons on which born . . .” first minute of are Murphy 2d Norman v. 124 Cal. 268 P. *6 181, unborn, 178, .said the court “. . even an ... meaning person’ it law, ‘a our child is within the viable ‘ person’.” minor cases held to be some could not pecuniary “proof provable loss.12 Or there is no it held that is immeasurably injury causation more pecuniary and injuries.”13 vague pre-natal for These reasons than in suits compensation coupled assertion for with the that are often provided infant mother’s stillborn in the loss of the injuries in which she can recover her for her own action suffering14 upset15 by occasioned and emotional still own his the mother’s husband his action for birth and that by injury recover medical occasioned her and losses expenses these occasioned All interment stillbirth.16 (and mentioned) others we not lead reasons have some to justice man conclusion that considerations of “[t]he damages by recovery infant, injured an in his date through wrong and born deformed mother’s womb deprived party, foetus, are third absent where the life By “wrongful 10. death action” we mean an action authorized Campbell’s some form of so-called Act. Lord’s By personal injuries action” mean an 11. “survival we action for which, by statute, injured person. survives death of the Taggert 303, 140, 144; Gay 204 A. 12. N.J. 2d Graf v. v. Thompson 428, 425, OF 983; E. 2d 266 N.C. 146 S. 15 A. L. R. 3d Harper James, 18.3, p. alsо 2 THE see LAW TORTS 1031. Friedburg Endresz v. 13. N.Y. N. E. 2d 903. Id. 14. Taggert, supra, n. Graf supra, Friedburg, Endresz v. n. 14. impaired prospect of unborn, yet faced with is never
while course, familiar And, physical health.”17 mental or oughtness often which is so self-justification our sense of legislative i.e., intent, is not lawyers, by judges and on relied forgotten.18 damages for recognize to recover fully action
We statute19 purely wrongfully a creature of death is caused Legislature concede, arguendo, has right cause action in power to create a of his children born alive for the father right withholding stillborn.20 But сhildren as to while Legisla- saying objective that the 1881 reason we find no gave to “maintain an the father the ture which injury intend “child” to a child” did not or death of their child. Whatever was in minds a stillborn include supposition. is, best, matter of mere at recorded indulge supposition arguendo, may, in our own But if we pre-natal injuries and actions for That since this: would be jurisprudence21 in Indiana our then unknown deaths were thought they gave very probably to whether lawmakers prenatal injury pre-natal creating action for were *7 “child” the same death, their word word whether or referring pregnant in to a woman often used “child” so child”.22 “with 17. Id. 18. Id. (Ind. 1970), 151, 155, 263 E. 2d 19. In re Estate Pickens N. 23 (1941), 321, 263; 218 Ind. Dec. Northern Ind. Power Co. v. West Ind. E.N. 716. Supreme Superficially, least, Court’s deci 20. at United States respect illegitimate Equal to under Protection Clause (cid:127)with sions children constitutionality excluding some doubt on unborn cast Levy (1968), 68; v. Louisiana 391 U. S. v. and stillborn children. Glona 73; U. Labine v. Vincent S. American Guarantee Co. 401 U. S. (Nov. 22, 1971), Reed v. Reed 91 Ct. See also S. 1017. discrimination). (sexual 92 Ct. 251
U. S. S. way reports into had found its the courts 21. At least none jurisdiction. appellate child, bring “Behold, virgin shall shall be with forth 22. a а version). (King Diet., James Webster’s New Int. son. . . .” Matthew 1:23 Ed., 2nd Child legis- helpful speculation than on the intent of 1881 More many which, for lators is consideration of the instances recognized purposes, other as law has unborn person. a early state-
As to the common law are directed we to this ment in 1 Blackstone COMMENTARIES 129: gift by God, “Life is a inherent the immediate individual; begins every contemplation
nature in of and it an infant is able stir in law as soon as to the mother’s quick potion child, by if womb. For a woman is a womb; or her killeth it in otherwise one beat whereby body, her of in her сhild dieth she is delivered though child; by a dead this murder was ancient manslaughter law homicide or . An infant . in [sic] mere, womb, supposed ventre law to or in the sa mother’s having purposes. many capable born for It is copyhold legacy, estate, a a It surrender of it. made to guardian assigned it; have a and it is enabled use, limited to its have such estate take afterwards limitation, actually as if it were then born. And agrees point the Civil law with ours.” according Indiana has followed the common property law in rights Biggs McCarty and inheritance to unborn children. v. 352;
(1882), 86 Ind. Swain Bowers 91 Ind.
307, 158 N. E. recognized
Indiаna statutes have also the unborn infant as a child. second statutes, of our anti-abortion Ind. (Burns 1956) Ann. proviso, Stat. 10-106 includes “ex- § cept physician purpose when done saving life of mother or child.” “Public Health Code Indiana”23 defines “stillbirth” meaning gestation birth
as “a after 20 weeks of which is not (“Live live birth.”24 birth” defined “the birth of entirely child who life shows evidence of after child is mother.”)25 person charge outside “The of interment seq. Stat. Ann. 35-101 et *8 24. 35-1702, (Bums (1969). Ind. Ann. Stat. § Cl. 3 35-1702, 25. Id. Cl. § 2. [i.e., a certificate of funeral shall file director26] a licensed The officer.”27 with the local health or of stillbirth death certifi required to obtain data for the director funeral certify the present physician “who it to shall cate upon the certificate of death of stillbirth.”28 cause of death medical attendance the death or stillbirth occurred without “If certify inquire officer shall . the local health . . . and . . suggest . .”.29 “If cause of death . the circumstances case .” the caused other than natural causes . . death was “Upon investigation.30 shall be referred to the coroner for properly receipt of a of a executed certifiсate of permit stillbirth a health officer shall local . . issue a ... . body.”31 disposal “shall of the funeral director body.”32 any permit prior disposition secure a . . foregoing clearly respect that with statutes indicate regulations concerning treated health deaths a stillbirth is exactly any any (even to the same as death of human requiring investigation suspicious cases). Al a coroner’s though express body” definition of “Dead Health vague respect Code whether it includes a stillborn body, the whole tenor of the act indicates that it does. The requirement person charge 35-1908 that “[t]he § (Burns 1971), the sec- definition §21-1001 Ann. Stat. 26. Since Ind. Cemetery (§§21-1001 21-1030), defines Act General Indiana tion interment as — disposition per- “any the remains of deceased lawful (Burns 1971), being 63-722 § § Ann. Stat. and Ind. son” Act, amended, (IC 25-15-1-1 Funeral Directors Embalmers and et seq.), provides: way any prepared shall not he in for burial “Dead human bodies embalming approved person except do so licensed to room in an permit state; embalming a dead the burial of by any body officer in this state to issued health he human shall duly director, holding funeral pеrson than to licensed other hereunder." license person charge “the interment” must be a obvious It director. funeral licensed 1969). (Burns 35-1901 Ind. Ann. Stat. § 27. 35-1902, 35-1903. Id. §§ 28. 1971). (Burns 35-1904 Stat. § Ind. Ann. 29. (Burns 1969), 35-1905 § Stat. Ann. 35-1907. Id. § Id. 35-1908. *9 disposition the any of prior to permit secure a interment shall dis requires permit clearly body burial a . . . .” died have as those which well bodies as position of stillborn body can be type of means that neither after birth. Which by Ceme permitted Indiana General except disposed as of “any disposition of defining lawful tery as interment Act33 by person provided 21-1019]. as of deceased the remains [§ 1971) (Burns prоvides: 21-1019 ...” § “Subject rights transportation of dead and removal to the pro- bodies, as bodies, disposition such
human other dying law, persons by all deceased vided in remains of earth, in deposited in be Indiana .. . shall the state of colum- cemetery, a mausoleum or in a an established have that shall such bodies barium .... been baria remains may deposited colum- in mausoleums or be cremated deposited in the earth----” donating specified body purposes for in the Short 35-4801 et Act, Ind. Anatomical Gift Ann. Stat. Uniform § disposed seq.,34 way today that is no a stillborn thеre only that legally except interment. Which means not died, body any as other child has it is treated who negligently day parents but also of a child killed one that just though expenses were before birth have “burial” as day killed one after birth. arguments pro con, as
Having carefully considered and parties cited, con- as in the we made and stated cases just logical unborn that it both to treat
cluded having days gestation who has been 280 child being legal legal personality distinct from although body and it is its mother enclosed its mother’s upon oxygen upоn dependent her breath therefore every her who food nourishment. Whether child gestation period has of time if artifi- been would live seq. (Burns 1971). Ind. Ann. Stat. 21-1001 et 1964 and § 35-4801(b) (Burns 1971), Ind. Ann. Stat. the definition § section gift act, (b), of the anatomical 35-4801 defines “decedent” as individual and “deceased includes stillborn infant or fetus.” cially (without injury being delivered untoward incurred delivery) profess dowe to know and need not know complaint alleges decide case. The here capable independent life. Furthermore, common it is knowledge that most children who live are have children who been quite delivered chronology at or point close to this in the gestation.35 of their holding We see no basis for plaintiff here merely did not lose a child because of fortui- tous gestation period circumstance that had continued longer a little many than is the case with other who children live a normal life. healthy capable
We therefore hold that “a full term male *10 independent mother, of life” with which its at time of womb, death in her
its “was then one nine months and pregnant” week meaning is a “child” within the of “ provides statute may which father . . . main [a] tain an action fоr . the . . death of child. . .”36 judgment
The is reversed and fur- the cause remanded for proceedings ther not expressed inconsistent with the views opinion. this
Sharp Staton, JJ., concur. Hoffman, J., opinion. C. dissents with
Dissenting Opinion majority opinion. dissent from the We C. J. I Hoffman, question impression first of are here concerned with wrongful a father maintain a Indiana —whether fetus, of a once-viable such stillbirth for the stillbirth negligence. resulting from defendant’s majority opinion first of turns to learned discussion The authority prop- development jurisdictions, from other of gestation normal human “Some authorities consider to last not days days. Lee-Greenhill, Principles but rather to & Practice (8th 1943), page 8.” Beaman v. Hedrick of Edition Obstetrics 828, 830, App. 404, E. 2d n. 1. Ind. 255 N. (Burns 1967). 34-1-1-8, also Ann. Stat. §2-217 IC recognizing authority erly of least division be at statutory peculiarities of partially the various due opinion twenty- jurisdictions. majority points The out that spoken jurisdictions allow, have whether four on allow, the cause of action for death. father’s jurisdictions readily views of these are a numeri- divisible into minority. majority Yet, among majority cal even jurisdictions action, such that аllow cause of are numer- there varying points light ous and view. this division of making authority, court, pronouncement this this the first jurisdiction, issue in point-blank this aim must its discern equitable at most rational and issue resolution this under and case Indiana statutes law. opinion points majority unborn children are out that rights. property and inheritance Where certain
accorded death, is the time of conceived at the decedent’s However, conception. time of considered Indiana, jurisdictions, other this is condi as well as on fact that the child be born alive. In Swain tioned App. 307, at Bowers 91 Ind. at 158 N. E. 601, (transfer denied), court held: rule of law an infant “It is a well-established taking conception purpose of being any the time from benefit, devise for its whether estate descent, alive, and provided it be born the statute
under after period foetal existence [fetal] *11 such (Citing expected.” might reasonably be life in continuance authorities.) the infant “be alive” that born condition of view capable of fetal existence as to be its matured far so and pretermitted heir statutes statutes living, after-born proposition unborn any, support for little, lend “сhild.” fetus is distinguish death expressly between statutes
Indiana (Burns 35-1901 Ann. Stat. 1971,16-1-17-1, Ind. § IC stillbirth. charge shall interment person provides, 1969) “[t]he or file a certificate death stillbirth health with the local * * (Emphasis supplied.) Similarly, officer *.” 1971, 16- IC 1-17-7, (Burns Ann. 1969), provides, Ind. Stat. §35-1907 “[u]pon receipt properly of a certificate executed death or * * * * * * a stillbirth per- a local health officer shall issue a disposal body.” mit for the (Emphasis supplied.) of the Ob- viously, these statutes intend a stillbirth and death be treated in manner disposal the same as to recordation and body. statutes, however, they not say, do nor are say, once-living meant a death of a human equivalent to a stillbirth. body.”
It is substance, is, true that stillbirth “dead It is also true that a fetus in the womb conceived mother’s is, passage time, being separated after capable from body carrying per- the mother’s on life on own. plexing question, however, wrongful is whether action may be maintained husband wife’s for the death of yet-unborn “child.”
If such a cause of exist, action is held to it must under exist 34-1-1-8, IC 1971, (Burns Ind. Ann. Stat. 1967), 2-217 provides, pertinent part, as follows: injury “Action for or death father, of child.—A death, case оf his family, imprison- or desertion of his ment, mother, or in person whom case divorce custody awarded, child was maintain * * injury child; or death of a construing Indiana decisions Prior this statute have held wrongful death of a actions child and actions for separate statutory death of adults are and distinct and the relating provisions independently should each construed. Albany Chicago R’y. Louisville, Goodykoontz, New Co. v. Ind. 472; Hahn, Guardian 21 N. E. et al. v. App. 149, (trans Moore fer 133 N. E. 2d Mayhew denied); Burns 103 Ind. E.N. *12 death of a the father for the action of right property solely father’s the loss of the on is based services. child’s fruits of the (1931), 204
Thompson Branch Ind. Town Fort v. supra. Moore, 1413; Hahn, et al. 440, 82 L. v. A. R. N. E. only property unborn, this “child” is Where only vesting non-existent, fact, but, infinitely speculative self-sustaining living, child. aof birth with the recover long that in an action to jurisdiction held has This damages is child, the his father’s measure for the death ren- have would of the services the child pecuniary value support majority, the cost of his reached less he dered until maintenance. supra; Thompson Fort Town Moore,
Hahn, al. v. et v. Admx., Siebeking, Ford, etc. Branch, suprа; et al. v. denied). (transfer 475, 148 2d 194 N. E. 128 Ind. damages outmoded blush, seems this measure first At living time has child. The applied to the death of a even when depended childrens’ long on their past families since the costs provide of life. Now help their means labors care, housing, clothes, food schooling, medical and dental outweigh expenses college least, far last, tuitions but not family income. Be that as contribution to the the child’s legislative propose to does not invade may, this writer long-standing here changing policy. It will realm damages applied say this measure of that if suffice to more rest “child” the result would on an unborn death of still supposition. the infant is encased within mere When than knowing incapable mortal man is mother’s womb birth, the ordeal of not to mention “child” will survive assign trying pecuniary impossibility value to provided might alive. had he been the child have born services (D. Stecy 1967), Schulty C., Dec. N. D. Ind. Judge directly issue with addressed the Beamer as follows: we are here concerned *13 recovery allowing “Although strong there reasons for are injuries subse-
by quently prenatal is but an infant who receivеs an necessarily alive, not follow born it does the child. action should be for stillbirth had special the death action for provides “Indiana may maintain provides: ‘A father . . . statute child. The an action Ind. Stat. Burns’ injury child or death of a . . . .’ the for recovery limited 2-217. This is Ann., Sec. in- the care of child and loss of expenses for the medical during the parents could have received the come which child’s support maintenance minority, less the cost [Citing during period. authorities.] medical are no stillborn child there the case of a “In value mother. bеsides those of a The expenses of support during his less the cost of services child’s beyond speculative determination. minority as to be is so believes Indiana courts would therefore court This recovery stillbirth a child. allow not necessarily preclude recovery all “This will 869 has Torts, child. Restatement of Section loss of by states, ‘(I)n the mother for a tort which an action damages harm, physical can be included for her caused by suffering and mental caused distress pain, the ” immediately afterwards.’ child before birth having prenatal injuries, infant, received an Where injuries alive, recover subsequently for those born Recovery through guardian or next friend. is had damage accrued. a minor child Where person to whom the recovery property accorded killed, lost of the father’s expectant father recover Yet, statute. to allow open doors “child” is to the courtroom a stillborn the death of damages impossibility uncertainty to boundless point determining “child” becomes viable for on this when the disagree. experts medical even suffering injuries pain and and other actual
The mother’s against personal injury in the mother’s are recoverable care, hospital incidental medi- and doctor tortfeasor. expenses consortium, infant’s funeral expenses, loss cal actually recoverable damages incurred are other Thus, damages. accordance with action for husband’s been equity have and wife general the husband principles of damages actually suffered. toas made whole equity demands foregoing I believe that reasons For the affirmed. judgment court should be of the trial that the Reported N. E. 2d 20. in 277 NOTE.— Company County REMC v. Public
Hendricks Service Indiana. February Rehearing denied
[No. 771A134. Filed December July 2, 1972. Transfer 1972.] denied