Baldwin v. Butcher

• Decision Date: 22 November 1971
• Docket Number: No. 12930,12930
• Citation: 184 S.E.2d 428,155 W.Va. 431
• Parties: Oren L. BALDWIN, as Administrator of the Estate of Michael Allen Baldwin, Deceased v. Joseph BUTCHER, Jr., et al.
• Court: West Virginia Supreme Court

Page 428

184 S.E.2d 428

155 W.Va. 431

Oren L. BALDWIN, as Administrator of the Estate of Michael

Allen Baldwin, Deceased v. Joseph BUTCHER, Jr., et al.

No. 12930.

Supreme Court of Appeals of West Virginia.

Submitted May 11, 1971.

Decided June 22, 1971.

Dissenting Opinion July 2, 1971.

Rehearing Denied Nov. 22, 1971.

Syllabus by the Court

Under the provisions of Sections 5 and 6, Article 7, Chapter 55, Code, 1931, as amended, the wrongful death statute of this State, an action may be maintained by the personal representative of a viable unborn child for the wrongful death of such child caused by injuries sustained by it while in the womb of its mother resulting from the negligence of the defendant and, upon sufficient proof, such damages as may be recoverable under the statute may be awarded in such action.

Greene, Ketchum & Baker, Menis E. Ketchum, Huntington, for appellant.

Campbell, Woods, Bagley, Emerson, McNeer & Herndon, C. F. Bagley, R. G. McNeer, Huntington, for appellees.

HAYMOND, Judge.

The sole question to be determined upon this appeal from the final judgment of the Circuit Court of Cabell County rendered October 24, 1969, which dismissed the action of the plaintiff, Oren L. Baldwin, Administrator of the estate of Michael Allen Baldwin, deceased, a stillborn child, is whether under Sections 5 and 6, Article 7, Chapter 55, Code, 1931, as amended, known as the wrongful death statute of this State, an action may be maintained for the wrongful death of a viable unborn child which was injured and subsequently stillborn as the result of the negligence of the defendants.

In this action instituted in the Circuit Court of Cabell County, the plaintiff seeks a recovery from the defendants, Joseph Butcher, Jr., Dolores Jones, Willard H. Jones, Johannah Fugitt Ratcliff and William Fugitt, in the amount of $10,000 for the wrongful death of the plaintiff's decedent.

The amended complaint alleges that the plaintiff's decedent, En ventre sa mere and viable, was injured on September 14, 1966, when his mother, a guest passenger in a motor vehicle driven by the defendant Johannah Fugitt Ratcliff collided with a motor vehicle driven by the defendant Joseph Butcher, Jr. which caused the plaintiff's decedent's death on September 16, 1966.

In addition to the defense of lack of negligence, the defendant Joseph Butcher, Jr., interposed and relies upon the defense that the amended complaint fails to state a claim against him upon which relief can be granted for the reason that the plaintiff's decedent, whose wrongful death is alleged to have resulted from the injuries sustained, was not a life in being and that the injuries which caused the miscarriage do not give rise to a wrongful death action.

By agreement of the parties, the defendants Johannah Fugitt Ratcliff and William Fugitt were dismissed from this action. The defendants, Dolores Jones and Willard H. Jones, filed a motion to dismiss on the same grounds asserted by the defendant Joseph Butcher, Jr. It was stipulated by the parties that the motion to dismiss should be treated as a motion for judgment on the pleadings. By its final judgment the circuit court, a special judge acting in lieu of the regular judge, sustained the motion to dismiss on the ground that the amended complaint failed to state a claim against the defendants upon which relief could be granted, and dismissed the plaintiff's action and awarded costs to the defendants, Dolores Jones and Willard H. Jones. From that judgment, this Court granted this appeal upon the application of the plaintiff.

On May 11, 1971, this case was submitted for decision in this Court upon the record and the briefs and the oral argument in behalf of the respective parties.

On September 14, 1966, at the intersection of Seventh Avenue and First Street in the City of Huntington, Cabell County, West Virginia, the defendant, Joseph Butcher, Jr., while driving an automobile owned by the defendants, Dolores Jones and Willard H. Jones, collided with an automobile owned by William Fugitt and driven by Johannah Fugitt Ratcliff. Nancy Baldwin was a guest passenger in the Ratcliff automobile and at the time was pregnant with a viable child. As a result of the collision she was thrown from the vehicle in which she was riding and suffered extensive personal injuries. Two days later, on September 16, 1966, she was delivered of a stillborn child who was named Michael Allen Baldwin whose death, according to the death certificate, was caused by trauma resulting from an automobile accident.

October 13, 1967, the plaintiff, Oren L. Baldwin, was appointed administrator of the personal estate of Michael Allen Baldwin, deceased; and this action was instituted by the plaintiff October 17, 1967.

At common law there was no right of action for damages for injury occasioned by the death of a person by a wrongful act. Adams v. Grogg, W.Va., 166 S.E.2d 755; Swope v. Keystone Coal and Coke Company, 78 W.Va. 517, 89 S.E. 284, L.R.A.1917A, 1128. See also Jackson v. Cockill, 149 W.Va. 78, 138 S.E.2d 710; Dunsmore v. Hartman, 140 W.Va. 357, 84 S.E.2d 137; 25 A C.J.S. Death § 13. As no right of action for death by a wrongful act existed at common law, the right or cause of action for wrongful death, if maintainable, exists under and by virtue of the provisions of the wrongful death statute of this State, Sections 5 and 6, Article 7, Chapter 55, Code, 1931, as amended, which has been in existence since the year of the formation of this State and has been amended from time to time principally with respect to the damages recoverable in an action for wrongful death. Section 5 of the statute, to the extent here pertinent, provides that 'Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action to recover damages in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to murder in the first or second degree, or manslaughter. * * *.'

Though the question for decision has not been considered or decided in this State and is a question of first impression in this jurisdiction, it has been considered and determined in numerous other jurisdictions with various results and in conflicting decisions.

The question was first considered in Dietrich v. Inhabitants of Northhampton (1884), 138 Mass. 14, 52 Am.Rep. 242, in which the court in an opinion by Justice Holmes, denied recovery on the grounds that there was no precedent for such recovery and that the unborn child was a part of its mother at the time of the injury and that any damage to it which was not too remote to be recovered was recoverable by her. That decision was followed for several years in other jurisdictions. The proposition that an unborn child was a part of its mother was vigorously and persuasively challenged in the dissenting opinion of Justice Boggs in Allaire v. St. Luke's Hospital (1900), 184 Ill. 359, 56 N.E. 638, 48 L.R.A. 225, which has been overruled by Amann v. Faidy, 415 Ill. 422, 114 N.E.2d 412. In the dissent Judge Boggs asserted that a fetus must be regarded as a life distinct from that of its mother when it reaches the prenatal state of viability at which it could survive if then separated from her.

In 1949, the Supreme Court of Minnesota, in Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838, 10 A.L.R.2d 634, held that, under the wrongful death statute of that State, the personal representative of an unborn child, viable and capable of separate and independent existence, whose death is caused by the wrongful acts of defendants, may maintain an action for wrongful death in behalf of the next of kin of the deceased child. Since that decision the courts, in a number of jurisdictions in which the question has been considered, have held that under wrongful death statutes, an action may be maintained to recover damages for the wrongful death of a viable unborn child. Hatala v. Markiewicz, 26 Conn.Sup. 358, 224 A.2d 406; Gorke v. Le Clerc, 23 Conn.Sup. 256, 181 A.2d 448; Worgan v. Greggo & Ferrara, Inc., 50 Del. 258, 128 A.2d 557; Porter v. Lassiter, 91 Ga.App. 712, 87 S.E.2d 100; Hale v. Manion, 189 Kan. 143, 368 P.2d 1; Rice v. Rizk (Ky.), 453 S.W.2d 732; Mitchell v. Couch (Ky.), 285 S.W.2d 901; State, Use of Odham v. Sherman, 234 Md. 179, 198 A.2d 71; Rainey v. Horn, 221 Miss. 269, 72 So.2d 434; White v. Yup, 85 Nev. 527, 458 P.2d 617; Poliquin v. MacDonald, 101 N.H. 104, 135 A.2d 249; Stidam v. Ashmore, 109 Ohio App. 431, 11 Ohio Ops.2d 383, 167 N.E.2d 106; Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42; Kwaterski v. State Farm Mutual Automobile Insurance Company, 34 Wis.2d 14, 148 N.W.2d 107; Gullborg v. Rizzo (3 Cir.) 331 F.2d 557; Todd v. Sandidge Construction Company (4 Cir.), 341 F.2d 75; Wendt v. Lillo (D.C.Iowa), 182 F.Supp. 56; Panagopoulous v. Martin (S.D.W.Va.), 295 F.Supp. 220. See 15 A.L.R.3d, Annotation, Section 2, page 995.

Other courts, however, which have considered this question, deny recovery for the wrongful death of an unborn child. Norman v. Murphy, 124 Cal.App.2d 95, 268 P.2d 178; Stokes v. Liberty Mutual Insurance Company (Fla.App.), 202 So.2d 794; Keyes v. Construction Service, Inc., 340 Mass. 633, 165 N.E.2d 912; Estate of Powers v. City of Troy, 4 Mich.App. 572, 145 N.W.2d 418; Drabbels v. Skelly Oil Company, 155 Neb. 17, 50 N.W.2d 229; Graf v. Taggert, 43 N.J. 303, 204 A.2d 140; Endresz v. Friedberg, 24 N.Y.2d 478, 301 N.Y.S.2d 65, 248 N.E.2d 901; In re Estate of Logan, 4 Misc.2d 283, 156 N.Y.S.2d 49; Re Bradley's Estate, 50 Misc.2d 72, 269 N.Y.S.2d 657; Gay v. Thompson, 266 N.C. 394, 146 S.E.2d 425, 15 A.L.R.3d 983; Padillow v....