Hornbuckle v. Plantation Pipe Line Co.

Duckworth, C. J.,

concurring specially. The opinion in Tucker v. Howard L. Carmichael & Sons, 208 Ga. 201 , shows plainly that I believe in making available the legal processes for the protection of the person of every human being from injuries resulting from tort. But I believe we went as far as sound logic and legal principles will permit. That ruling authorizes a child to sue for injuries it sustained while in its mother’s womb, provided it was quick, hence a human being at the time of such injury. The ruling of the majority in this case extends that ruling to allow the child to maintain a suit for damages to the cell from which it came, even though the cell had been conceived ten seconds. It ignores reality and fact. It simply by-passes the inflexible rule of law that for one to maintain a suit for personal injury, the injury must be either to the person of the suer or that of a relative or one upon whom he is dependent. This indispensable requisite is completely absent here. The cell is not the person of anyone, and whether it becomes such is dependent upon the processes of nature which raise it from a mere cell to a human being. When I say that one can not sue for an injury to a stranger or the property of a stranger, there can be no logical denial. The majority ruling allows the baby to sue for injury, not to itself, for it is not in being at the time of the injury and hence could not have suffered personal injury; nor can it claim ownership of the injured cell at a time when it had never lived.

The ruling of the majority may well cause our courts of justice to become dumping grounds for faked and fraudulent suits. They may well became the helpless instrumentalities through which helpless people are robbed by crooks. If an *506 unscrupulous doctor, and I am sure that great profession has some, testifies as an expert, where he is not required to give facts for the basis of his opinion, that the cell from which the suing baby came was injured five seconds after conception, and this testimony is not contradicted, the court which knows that such injury was neither to the plaintiff nor to anything that belonged to it, must stultify itself and give judgment for damages. If a baby can sue for injuries sustained five seconds after conception, as the majority rules, why not allow such suits for injuries before conception, even unto the third and fourth generations ?

We have the law confused too much already. In Biegun v. State, 206 Ga. 618 ( 58 S. E. 2d 149 ), it was said, I believe incorrectly, that as a matter of law a baby did not become quick until four months after conception. The Court of Appeals had no choice but under the Constitution they were compelled to follow that unsound ruling of ours. Doing so, they held that as a matter of law the child had not become quick at the time of the accident which occurred six weeks after conception. I think that ruling was erroneous, and that our ruling upon which it was based was erroneous, because it is a question of fact to be proven by evidence as to when the foetus becomes quick. For this reason alone I concur in the judgment of reversal.