Fowler v. Woodward

Brailsford, Justice.

This is an appeal from an order of the circuit court overruling a demurrer to the complaint. The action is for damages for the wrongful death of an unborn, viable infant. The complaint alleges that the infant, while in the eighth month of gestation, perished with its mother in an automobile collision, and ensuing fire, which was caused by the negligent and willful misconduct of the defendant. The demurrer is for insufficiency of facts to state a cause of actio,n and for lack of legal capacity to sue, in that, the complaint fails to allege that the infant “was born alive…