OPINION.
BOND, J.
statute. (After stating the facts as above).— The statute under which the petition herein wag framed so far as applicatory to its allegations is, to-wit:
*131Purpose statute. injuries to Unborn mght of child *132Right of Parents to sue. *130“Whenever any person . . . shall die from any injury resulting or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant or employee, whilst running, conducting or managing any . . . street, electric . . . car,. . . . the corporation, ... in whose employ such agent, servant, employee, . . . shall be at the time such injury is committed, or who owns, operates or conducts any such . . . street car ... at the time any injury is received resulting from or occasioned by any . . . unskillfulness, or negligence- . . . above declared, shall forfeit and pay as a penalty, for every such person ... so dying, the sum of not less than two thousand dollars and not exceeding-ten thousand dollars, in the discretion of the jury, which may be sued for and recovered ... or, third, if such deceased be a minor and unmarried . . . then by the father and mother, who may join in the suit, and each shall have an equal interest in the *131judgment.” [R. S. 1909, sec. 5425.] The only point for review is whether the statute was intended to provide a penalty for the death of a person after birth, caused by negligent injuries before its birth. The statute in question, with some modifications and expansions of its scope and remedies, has existed in this State for more than fifty years. It was intended originally to alter the common law rule that an action for a personal injury abated upon the of the injured person, and to provide for the survival of such actions. We have not been able to find any precedent at common law establishing the right of a child injured while en ventre sa mere but subsequently born alive, to bring an action thereafter for the injuries so received. This being the purpose of the Legislature, .the declaratory act must be .interpreted in that light and to effectuate that object, When this statute was passed no case had arisen wherein the right to maintain such an action had been affirmed. Nor, as far as we are informed, had any such suit been brought, although there must have been many occasions in the progress of society when a basis existed for such a suit if it had been thought to be maintainable. Since the statute a few cases have arisen. In a case before the Massachusetts Supreme Court, opinion by Mr. Justice Holmes, now of the Supreme Court of the United States, it was held that a child injured before its birth in consequence of an injury sustained by its mother, did not acquire after its birth any right of action for such injury, and, hence, its administrator could not sue for its death so occasioned. [Dietrich, Admr., v. Inhabitants of Northampton, 138 Mass. 14.] The right to maintain such an action was.also denied by the Supreme and appellate courts of Illinois. [Allaire v. Hospital, 184 Ill. 359; Allaire v. Hospital, 76 Ill. App. 441.] These and other authorities were quoted *132without disapproval by Lamm, J., in Kirk v. Middlebrook, 201 Mo. l. c. 285, 286. The right to maintain an action for injuries before its birth which caused a child after its birth to be permanently crippled, was denied by the Queen’s Bench Division in Ireland. [Walker v. Great Northern Ry., 28 Law Beports (Ireland), 69.] The decision in that case was concurred in by three judges. It was taken to the appellate court, but before the judgment of that court was pronounced, the child died. This is shown by the text of a recent work on Negligence in Law, Beven’s (3 Ed.), p. 76. In all the cases the right of a mother to maintain an action for negligent injury to herself and her unborn child is conceded. The only question is whether a dual right exists in cases where the child was injured in its mother’s womb and is subsequently bom alive, and seeks to recover for the effects after birth, of the injuries so received. In the above citations this right was denied. [Nugent v. Brooklyn Heights R. R. Co., 139 N. Y. Supp., 367.] Those decisions were rendered after consideration of the argument that unborn children are regarded at common law as being in esse lot the purpose of taking property by descent or by devise and for the purpose of guardianship and in other respects; but these faculties of unborn children are said in those decisions to rest upon a legal fiction invented to enable the child to take a benefit which, if born, he would be entitled to, and not to afford any sufficient ground for an action by a living child for injuries suffered before its birth.
It is not necessary to rule upon the rationale of these decisions. It is enough to say that they demonstrate that by the act in question (B. S. 1909, sec. 5425) the Legislature could not have intended (in view of the law existing or declared at that time) when it used the terms “persons so dying” to include a person who died after birth from injuries received by its mother prior to its birth. Such a design on the part of the' *133legislature would have been out of keeping with the paramount object of the act to create a survival of actions which would have lapsed at common law upon the death of the injured person. For in the case of a child so injured no right of action accrued to such child after its birth by the common law as it had been then adjudged; and, hence, there was no prior right to sue, which the statute could take hold of and cause to survive the death of the person injured. If it had been the purpose of the statute to create a cause of action which did not theretofore exist, certainly that intention would have been expressed in the terms of the act. This was not done at the time of its enactment or in any of its subsequent amendments. It follows that the trial court did not err in sustaining the demurrer in this case; and.it is affirmed.
Woodson, P. J., Lamm and Graves, JJ., concur.