Sana v. Brown , 35 Ill. App. 2d 425 ( 1962 )

35 Ill. App. 2d 425 (1962) 183 N.E.2d 187

Nancy Sana, by Kenneth Sana, Her Father and Next Friend, Plaintiff-Appellant,
v.
Annie Mae Brown, Defendant-Appellee.

Gen. No. 48,594.

Illinois Appellate Court — First District, First Division.

May 21, 1962.

Francis H. Monek, of Chicago, for appellant.

Morton H. Meyer, of Chicago (Arthur M. Gorov and William Elman, of counsel), for appellee.

MR. JUSTICE ENGLISH delivered the opinion of the court.

Complaint was filed on behalf of four plaintiffs for injuries alleged to have been sustained by them as a result of negligence on the part of defendant in the driving of her automobile. The complaint further alleged that plaintiff, Eleanor Sana, was pregnant at the time of the occurrence and that she gave birth to plaintiff, Nancy Sana, approximately 4 1/2 months thereafter.

Answering as to the other plaintiffs, defendant filed a Motion to Dismiss the Complaint as to Nancy Sana on the sole ground that she was not viable at the time of the injuries allegedly sustained by her. The motion was allowed and the complaint was dismissed as to her, the court making the necessary finding to render its order final and appealable at this time. (Ill Rev Stats, c 110, § 50(2).)

The identical question presented by plaintiff's appeal in this case was very recently raised in Daley v. Meier, 33 Ill. App. 2d 218, 178 NE2d 691, in which we held that a cause of action for prenatal injuries is not dependent upon viability. The opinion in that case is controlling here.

The judgment of the Circuit Court is, therefore, reversed and the cause is remanded with directions to overrule defendant's Motion to Dismiss.

Reversed and remanded with directions.

MURPHY, P.J. and BURMAN, J., concur.