Bayer v. Suttle

• Decision Date: 07 February 1972
• Citation: 100 Cal.Rptr. 212,23 Cal.App.3d 361
• Court: California Court of Appeals Court of Appeals
• Parties: Dieter BAYER and Regina Bayer, Plaintiffs and Appellants, v. Walter SUTTLE and Betty Suttle, Defendants and Respondents. Civ. 26890.

Page 212

100 Cal.Rptr. 212

23 Cal.App.3d 361

Dieter BAYER and Regina Bayer, Plaintiffs and Appellants, v. Walter SUTTLE and Betty Suttle, Defendants and Respondents.

Civ. 26890.

Court of Appeal, First District, Division 3, California.

Feb. 7, 1972.

Hearing Denied April 12, 1972.

Hoberg, Finger, Brown & Abramson, Thomas L. Walsh, San Francisco, for plaintiffs and appellants.

Nagle, Vale, McDowall & Cotter, Vernon V. Vale, San Mateo, for defendants and respondents.

CALDECOTT, Associate Justice.

Plaintiffs appeal from the judgment of dismissal after an order sustaining a demurrer to plaintiffs' first amended complaint.

The complaint alleged in substance that on May 4, 1967, due to the negligence of the defendants, their car collided with a car driven by Regina Bayer who was in the eighth month of pregnancy. Regina Bayer was thrown violently in the car so as to injure the unborn child. At the time of the accident, the child was alive and viable. She died as the result of her injuries on May 8, 1967, and was delivered of her mother stillborn. The plaintiffs allege that they are the parents and the sole surviving heirs of the child and are seeking damages for the wrongful death of the child. The plaintiffs were compelled to incur obligations for medical services and hospitalization for which they ask special damages. They also ask general damages for deprivation of 'the protection, comfort, society, support and maintenance of Michelle Regina Bayer.'

The defendants' general demurrer to the complaint was sustained. The defendants' motion to dismiss the action for failure to amend the complaint was granted.

This case is before this court on the propriety of the sustaining of a demurrer. The allegations of plaintiffs' complaint therefore must be regarded as true and it must be assumed that the plaintiffs can prove all the facts as alleged. (Speegle v. Board of Fire Underwriters, 29 Cal.2d 34, 41, 172 P.2d 867; Custodio v. Bauer, 251 Cal.App.2d 303, 310, 59 Cal.Rptr. 463; Mercer v. Elliott, 208 Cal.App.2d 275, 277--278, 25 Cal.Rptr. 217.)

The question of whether an action can be maintained for the wrongful death of a child when the child is not born alive has been considered in a number of jurisdictions since the action was first allowed in Minnesota in 1949. (Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838.) California is one of a minority of states which have held that the action is not maintainable. (See 15 A.L.R.3d 992.) ¹

In 1954, in a case of first impression, Norman v. Murphy, 124 Cal.App.2d 95, 268 P.2d 178, the court held that the parents of an unborn child carried within its mother for a period of four and one-half months could not bring an action for its death En ventre sa mere. Although the case involved a nonviable fetus rather than, as here, a viable fetus of eight months, the rationale of the case applies with equal facility to the viable. ² The court in Norman v. Murphy based its decision on an interpretation of Code of Civil Procedure section 377, the wrongful death statute. Code of Civil Procedure section 377 reads in pertinent part as follows: 'When the death of a person not being a minor, or when the death of a minor person who leaves surviving him either a husband or wife or child or children or father or mother, is caused by the wrongful act or neglect of another, his heirs . . . may maintain an action for damages against the person causing the death, . . .'

The court in Norman v. Murphy turned to Civil Code sections 25 and 26 for the definition of 'a minor person.' Section 25 provides in part that '(m)inors are all persons under 21 years of age. . . .' Section 26 calculates the period 'from the first minute of the day on which persons are born to the same minute of the corresponding day completing the period of minority.'

Since Norman was decided, Civil Code section 377 has amended without specifying a cause of action for wrongful death of an unborn child. We recognize the significance of the legislative inaction in the light of pertinent judicial precedent.

Furthermore, Civil Code section 29 provides in part: 'A child conceived, but not yet born, is to be deemed an existing person, so far as may be necessary for its interests in the event of its subsequent birth; . . .' As pointed out in Norman v. Murphy, Supra, the right of action for wrongful death, not having existed in the common law, is 'unqualifiedly statutory.' In the interpretation of statutes, every word, phrase, or provision is presumed to be intended by the Legislature to have meaning and perform a useful function. (See 45 Cal.Jur.2d 613.) If an unborn child is legally a person there would be no useful function to be performed by the section in deeming the child a person for this one limited purpose. ³

Thus we must conclude that the Legislature did not intend to include an unborn child within the meaning of 'person' in Code of Civil Procedure section 377.

The judgment is affirmed.

DRAPER, P.J., concurs.

HAROLD C. BROWN, Associate Justice (dissenting).

I dissent.

The majority opinion follows the reasoning of Norman v. Murphy, 124 Cal.App.2d 95, 268 P.2d 178, in construing Code of Civil Procedure section 377 so as to limit the cause of action in the wrongful death to a minor person who has survived birth. The court in Norman applied Civil Code sections 25 and 26 in determining who the Legislature meant to be minor persons under the provisions of Code of Civil Procedure section 377, i.e., minority is to be calculated 'from the first minute of the day on which persons are born to the same minute of the corresponding day completing the period of minority.' (Civ.Code, § 26.)

I do not agree with the reasoning of Norman. No hearing in that case was sought before our Supreme Court and, while it deserves respectful attention, we are not bound by it as precedent. (See Richard v. Degen & Brody, Inc., 181 Cal.App.2d 289, 303, 5 Cal.Rptr. 263.)

It is recognized that an action for damages for wrongful death could not be maintained at common law and, being wholly statutory in origin, must stand or fall by the terms of the statute under which recovery is sought. (Norman v. Murphy, supra, 124 Cal.App.2d 95, 97, 268 P.2d 178.)

Code of Civil Procedure section 377 does not spell out in so many words that it includes unborn infants. I am convinced, however, that the only reasonable interpretation of that section includes all living persons, including a child En ventre sa mere. The language of the section 'death of a person not being a minor, or when the death of a minor person who leaves surviving him . . .' is all inclusive. (Emphasis added.) The cause of action limits recovery for the wrongful death of minor persons only by restricting those who may sue, i.e., 'husband or wife or child or children or father or mother . . .'

Civil Code section 26 is to be invoked in computing minority in specific cases and to determine when minority ends. (See 28 So.Cal.L.Rev. 400, 404.) The computations of age become important in certain types of cases such as those involving a determination of eligibility for school, consent to medical treatment, consent to be a blood donor, eligibility for draft in the military service, etc. Under the facts before us, a computation is unnecessary. The question to be answered is: Was there a living person? Not the age of that person. The complaint here alleged the child was alive and viable. In determining the propriety of the sustaining of the demurrer, we must regard the allegations of the complaint as true. (Speegle v. Board of Fire Underwriters, 29 Cal.2d 34, 172 P.2d 867.)

The majority opinion states: 'Since Norman was decided, Civil Code section 377 has been amended without specifying a cause of action for wrongful death of an unborn child. We recognize the significance of the legislative inaction in the light of pertinent judicial precedent. . . .'

In Neel v. Magana, Olney, Levy, Cathert & Gelfand, 6 Cal.3d 176, 191, 98 Cal.Rptr. 837, 847, 491 P.2d 421, 431, the court quotes from People v. Daniels and states: 'In People v. Daniels (1969) 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225, which did involve the construction of a statute, we recognized the weakness of inference from legislative inaction. 'Legislative silence after a court has construed a statute gives rise at most to an arguable inference of acquiescence or passive approval . . . But something more than mere silence should be required before that acquiescence is elevated into a species of implied legislation such as to bar the court from reexamining its own premises.' (Citations.) (dissenting opinion of Traynor, J.).'

The case before us differs from People v. Daniels, Supra, 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225, in that the Legislature has amended Code of Civil Procedure section 377. In Daniels, the lawmakers had not spoken on the subject before it. But here, any inference of passive approval of the interpretation of Code of Civil Procedure section 377 by the court in Norman is likewise clearly objectionable. Norman is a decision by our Court of Appeal which was not taken to our Supreme Court. It is a solitary case in California. Its facts involve a non viable fetus rather than a viable fetus.

It seems more reasonable to assume that our Legislature was unaware of the Norman decision and was satisfied that Code of Civil Procedure section 377 included all living persons and, therefore, that a cause of action existed for the wrongful death of any such living person without additional legislation. Its language embraced all living persons, 'minor person' and 'person not being a minor.' The legislative history of section 377 indicates that the use of the term 'minor person' was not to eliminate a cause of action for the death of a viable fetus or intentionally to omit to provide such cause of action, but to limit the right of action to the situation where the minor person was survived by specific relatives. The section, as...