Rex T. Reeves and Haas & Hurt, for defendant.G. Seals Aiken and Luther Alverson, for plaintiff.

1. A petition of a child, seeking damages for a prenatal injury resulting from negligence of the defendant in carrying its mother to the hospital, where it was born in slightly more than three hours after the injury, alleged a cause of action and the court erred in sustaining a demurrer thereto and dismissing the same.

This case was transferred from the Court of Appeals to the Supreme Court after that court, sitting as a body, was unable to reach a determination, the Judges being equally divided as follows: Judges Sutton, MacIntyre, and Worrill for affirmance; Judges Felton, Gardner, and Townsend for reversal. Accordingly, because of this equal division the Supreme Court has jurisdiction under art. 6, sec. 2, par. 4 of the State Constitution. Code (Ann.), 2-3704 (Ga. L. 1945, p. 43).

The action was a suit by Margaret Loraine Tucker, an infant, by next friend, against Howard L. Carmichael & Sons Inc., to recover damages for personal injuries allegedly caused by the defendant's negligence. The petition alleges: On October 16, 1949, about 6:30 p. m., while her mother was en route to a hospital in an ambulance operated by the defendant for the purpose of transporting the mother to the hospital, where she gave birth to the infant, the injuries occurred. The plaintiff was unborn at the time of the injuries and was not born until 9:57 p. m. on the date of the occurrence of the injuries. The direct and proximate cause of said injuries was the impact of the ambulance with another vehicle which was the result of the negligent and reckless manner in which the ambulance, in which the pregnant mother as a fare-paying passenger, was being driven. To this petition the defendant filed general and special demurrers, and on June 19, 1950, the defendant filed its answer. On July 6, 1950, the plaintiff filed a demurrer to the answer, but the court refused to pass on this demurrer on the ground that it was filed too late. After a hearing the court sustained the general demurrer to the petition and dismissed the action. The exceptions here are to the two judgments of the trial court.

1. The decisive question here presented has never been passed upon by this court, and, hence, we must reach a decision without the benefit of previous rulings on that point by a Georgia court. There are numerous decisions by the courts of other States, but they are not unanimous. Without citing each specific case, reference is made to 16 American Jurisprudence, 56, 75; 43 Corpus Juris Secundum, 270, 104; 20 A.L.R. 1505 (Annotation); 97 A.L.R. 1524 (Annotation); and 10 A.L.R. 2d, 1059 (Annotation), where all the cases are cited. Since some of the courts, such as Ohio ( Williams v. Marion Rapid Transit Co., 152 Ohio 422, 87 N. E. 2d, 334, 10 A. L. R. 2d, 1051), and Minnesota ( Verkennes v. Corniea, 229 Minn. 365 (38 N. W. 2d, 838, 10 A.L.R. 2d, 634), hold that a child may maintain a suit for damages for a prenatal injury, and other courts, such as Massachusetts ( Dietrich v. Northampton, 138 Mass. 14, 52 Am. R. 242; Bliss v. Passanesi, 95 N. E. 2d, 206), and New York ( Drobner v. Peters, 232 N. Y. 220, 133 N. E. 567), hold that such an action is not maintainable, this court recognizes at the outset the conflict in decisions of other States as well as the absence of any binding precedent or Georgia statute on the subject, and will reach a decision based upon sound principles and fair deductions from the common law, which is, in such a case, of force in this State. Grimmett v. Barnwell, 207 Ga. 641 (63 S. E. 2d, 649), sustains an attack upon the ruling here. The court in this case did precisely what this court said the trial court in that case should have done. The judgment there under review was one overruling the demurrer, thus passing on the merits, and we held that in thus ruling on the merits the judgment was materially different from what it should have been had the demurrers been dismissed instead of being overruled. The demurrers here, not having been filed at the time required by law, were properly dismissed, and the exception to that judgment is without merit. For the reasons stated in division 1 of this opinion, the judgment is reversed.

Judgment reversed. All the Justices concur.

1951