Newman v. City of Detroit

Decision Date01 September 1937
Docket NumberNo. 106.,106.
Citation281 Mich. 60,274 N.W. 710
PartiesNEWMAN v. CITY OF DETROIT.
CourtMichigan Supreme Court

OPINION TEXT STARTS HERE

Action by Irving Newman, administrator of the estate of Charles L. Newman, deceased, against the City of Detroit, a municipal corporation. From an order denying a motion to dismiss the action, defendant appeals in nature of certiorari.

Reversed and remanded, with instructions.

Appeal from Circuit Court, Wayne County; Guy A. Miller, Judge.

Argued before the Entire Bench.

Rodney Baxter and A. Albert Bonczak, both of Detroit, for appellant.

Adrian D. Rosen and Harold M. Shapero, both of Detroit, for appellee.

BUTZEL, Justice.

Plaintiff brought suit under the Survival Act (Comp.Laws 1929, §§ 14040-14060), claiming that plaintiff's mother, while a passenger on a street car, owned and operated by defendant, was injured through the negligence of the motorman, and that decedent thus suffered prenatal injuries from which he died three months after birth. The accident occurred 22 days prior to his birth at the end of the normal period of gestation. It is alleged that as a result of the accident decedent suffered injuries to his skull and others of an internal nature, those to the head causing hydrocephalus and brain hemorrhage, resulting in death. Defendant made a motion to dismiss on the ground that decedent, an unborn child and unable to contract, could not become a passenger for hire, and also that neither under the common law nor under any statute in this state is there is any liability to an infant for prenatal injuries. The trial judge, in denying the motion to dismiss, drew an analogy from the criminal law in reference to the wilful killing of an unborn quick child by any injury to its mother. Comp.Laws 1929, § 16739. As the question of liability to a child for prenatal injuries was never before this court, we allowed an appeal in the nature of certiorari.

Appellant claims that to permit such recovery, in view of the fact that it is not provided for at common law or legislative enactment, would be judicial legislation on our part; that it would open the door to fraud and perjury; that the cause of physical or mental defects that appear at child-birth or thereafter may be congenital, or due to injuries prior or subsequent to the accident, on account of which liability is asserted, or may have been due to the use of instruments or other mishaps at parturition. Appellee, on the other hand, calls our attention to the criminal law, but there is no claim of any criminal liability and there is no statute governing civil liability. Appellee further points to the Survivial Act (section 14040, Comp.Laws 1929), which provides that an action for personal injuries to a person should survive. It is admitted that decedent had viability at the time of the accident, but in order for an action to survive, it must have existed at the time of the person's death. We are also referred to the statutes of descent and distribution, which permit a child en ventre sa mere at the time of the death of the parent to inherit from such parent. These statutes are not applicable. Appellee further contends that where there is a wrong, there should be a remedy, and claims that the question of causation is a matter of proof, the same as in other actions for negligence. These arguments may well be addressed to the legislature.

The...

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29 cases
  • Toth v. Goree
    • United States
    • Court of Appeal of Michigan — District of US
    • October 28, 1975
    ...v. Buchhorn, supra, in connection with the first section of the wrongful death statute: 'In Womack, we overruled, Newman v. City of Detroit, 281 Mich. 60, 274 N.W. 710 (1937), and held that a common law action does lie in this state for prenatal 'Womack being the applicable rule of common l......
  • State, Use of Odham v. Sherman
    • United States
    • Maryland Court of Appeals
    • March 12, 1964
    ... ... St. Louis-San Francisco Ry. Co., 214 Ala. 611, 108 So. 566; Newman v. City of Detroit, 281 Mich. 60, 274 N.W. 710; LaBlue ... Page 190 ... v. Specker, 358 Mich ... ...
  • White v. Yup
    • United States
    • Nevada Supreme Court
    • September 12, 1969
    ...recovery are: Alabama: Stanford v. St. Louis-San Francisco Ry. Co., 214 Ala. 611, 108 So. 566 (1926); Michigan: Newman v. City of Detroit, 281 Mich 60, 274 N.W. 710 (1937). Without belaboring the point by an analysis of each of the cases in which recovery was denied, it is sufficient to say......
  • Powers' Estate v. City of Troy
    • United States
    • Michigan Supreme Court
    • March 4, 1968
    ...affirmed. Its holding was: 'Therefore, while we find authority for the proposition of the appellant, we are bound by the holding in Newman 2 supra, the intent of the legislature under the Michigan wrongful death act, and the clear meaning of the term 'person' as used therein.' 4 Mich.App. 5......
  • Request a trial to view additional results

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