Hornbuckle v. Plantation Pipe Line Co.

Almand, J.,

dissenting. In Tucker v. Howard L. Carmichael

& Sons, 208 Ga. 201 , which was a case of first impression in this State, we held that an unborn child could sue for a tortious injury sustained by it while in its mother’s womb at a time when the mother, quick with child, was on the way to the hospital to give birth to the child, where the child was born slightly more than 3 hours after the injury. In that case, we placed the ruling on Blackstone’s statement that at common law the life of - an unborn infant “begins in contemplation of law as soon as the infant is able to stir in its mother’s womb” (1 Blackstone, p. 130). We there held that the unborn child in its mother’s womb was a “person” within the meaning of Code § 105-107, which provides that “Every person may recover for torts committed to himself.” The majority opinion in the instant case in effect holds that an infant becomes a “person” from the moment of conception, with the right to sue for a tortious injury after its birth. We reached *507 the limits of reasonableness in the Tucker case, and I am unwilling now, in the absence of legislation, to extend that case and to hold that the life a person, possessing or forming the subject of individual personality, begins when the male and female elements of procreation unite to form the seed of a person. Assuredly, we would not call an acorn a tree. The eternal riddle, which came first, the egg or chicken? can be solved by saying they are one and the same.

The majority opinion opens the field of conjecture and speculation as to the time when conception takes place. How can there ever be a definite time fixed when the egg in the body of the mother is fertilized by the father’s spermatozoa? Does it take place in 1 minute, or 2 hours, or 2 days, or 2 weeks after copulation? The time the foetus first stirs in the mother, which is the beginning of infant life, the mother knows, but neither the mother nor anyone else can fix the exact time or date of conception.

Our criminal statutes clearly recognize the difference between an unborn child that is: quick in its mother’s womb and one that is not quick. Code § 26-1101 makes it a felony to administer drugs, etc., to a woman pregnant with child with intent to destroy the child, where the mother or child dies, and in such instances the expression “quick with child” means an unborn child “so far developed as to be quick — so far developed as to move or stir in the mother’s womb.” Summerlin v. State, 150 Ga. 173, 176 ( 103 S. E. 461 ). Code § 26-1102 makes it a misdemeanor to administer drugs, etc., to a “pregnant woman” with intent to produce a miscarriage. Code § 26-1103 makes it a capital offense to illegally kill an unborn child so far developed as to be ordinarily called “quick” by injury to the mother or child. In Hunter v. State, 29 Ga. App. 366 ( 115 S. E. 277 ), it was held that evidence that a mother was 4 months pregnant was not sufficient to show that she was pregnant with child, or that the child was so far developed as to be “quick.”

The petition in the instant case charges that the injury to the mother occurred on August 29, 1952, and the plaintiff was born on April 29, 1953, 8 months later. The petition alleges that the mother was pregnant at the time of the injury, but there are no allegations in the petition that the child was so far de *508 velopecl as to be quick or to stir in its mother’s womb. The normal duration of pregnancy in human beings is 10 lunar months or 280 days. Wharton & Stille, “Medical Jurisprudence,” sec. 303; Gradwhol, “Legal Medicine,” p. 804. “Quickening” is defined in Black’s Law Dictionary as “The first motion of the foetus in the womb felt by the mother, occurring usually about the middle of the term of pregnancy.” Taking the period of 280 days as being the normal period, and under the allegations of the petition it appearing that the plaintiff’s mother was pregnant for about 6 weeks at the time of the alleged injury to her, we do not have to determine in this case whether the court can or cannot take judicial notice as to the time when quickening takes place, since our statutes clearly recognize the difference between “a pregnant woman” and “a woman pregnant with child”; and, as we have said that the meaning of the words “pregnant with child” is that the child has so far developed as to be quick, or to stir in the mother’s womb, it was incumbent upon the plaintiff in this case, by proper allegations, to show that the child was quick, since, in my opinion, under the Tucker case, supra, a right of action would not exist in the plaintiff unless there were allegations in the petition which showed that the child was quick at the time of the injury to the mother.

The allegations in the petition failing to show that the plaintiff was quick in the mother’s womb at the time of the alleged injury to the mother, the Court of Appeals correctly held that the petition was subject to general demurrer.