Britt v. Sears

• Decision Date: 29 December 1971
• Docket Number: No. 371A41,No. 2,371A41,2
• Citation: 150 Ind.App. 487,277 N.E.2d 20
• Parties: Kenneth BRITT, Appellant, v. Woodrow W. SEARS, Appellee
• Court: Indiana Appellate Court

Page 20

277 N.E.2d 20

150 Ind.App. 487

Kenneth BRITT, Appellant, v. Woodrow W. SEARS, Appellee.

No. 371A41.

Appellate Court of Indiana, Division No. 2.

Dec. 29, 1971.

Rehearing Denied Feb. 2, 1972.

F. Boyd Hovde, Indianapolis, for appellant; Townsend, Hovde & Townsend, Indianapolis, of counsel.

William O. Schreckengast, Edward E. Brown, Beech Grove, for appellee; Kitley, Schreckengast & Davis, Beech Grove, of counsel.

WHITE, Judge.

The sole question presented in this appeal is whether, as against a motion to dismiss, an action may be maintained by a father for the wrongful death of a stillborn child alleged to be 'a full term healthy male capable of independent life' with which its mother 'was . . . (at the time of its fatal injury) nine months and one week pregnant.' The statute on which the action here involved is predicated is IC 1971, 34--1--1--8, Ind.Ann.Stat. § 2--217 (Burns 1967) which, in pertinent part, provides:

'A father . . . may maintain an action for the . . . death of a child . . ..'

The trial court dismissed the plaintiff's complaint under Trial Rule 12(B)(6) for failure to state a claim upon which relief could be granted. ¹ For the purposes of reviewing the trial court's ruling we must and do assume that the allegations in the plaintiff's complaint are true. ²

The question of whether the complaint (in the words quoted in the first sentence hereof) describes a child within the meaning of the statute above quoted has not been answered by legislative enactment nor by prior reported decision of an Indiana state court. ³ Thus we have no rule by which to decide this appeal. But want of a law to follow furnishes no excuse for refusing to make a decision. When there is no rule to follow the court must make one, or, as some jurisprudents prefer, 'discover' one. ⁴ As judges usually do in like instances, we look to the decisions and opinions of courts in other common law jurisdictions. There we find many well reasoned opinions reaching opposite conclusions. At the present time it appears that questions almost identical to ours ⁵ have been answered by opinion published in twenty-four of the United States and the District of Columbia. In sixteen of those states, and in the District of Columbia, it has been held that an action lies. In eight states, it has been held that no action may be maintained. ⁶ This two-to-one majority is, in itself, quite impressive but not decisive.

The early reported cases in the United States dealt not with the question of wrongful death before birth but with pre-natal injury to a child thereafter born alive. The first such case is Dietrich v. Northampton (1884), 138 Mass. 14, 52 Am.Rep. 242, which iterated what is said to have been the common law belief that the unborn child is a part of the mother who is, therefore, the only 'person' legally capable of sustaining injury. ⁷ That reasoning thereafter was the basis, and in some states continues to be the basis, for denying both that a pre-natally injured child, after its live birth, has a cause of action for such injuries and that there is any cause of action for its wrongful death, particularly if (as here) the death occurs before birth. Some states have since found reasons for allowing the live-born child to maintain an action for damages for pre-natal injuries, while still denying to anyone a cause of action for a child's pre-natal wrongful death. ⁸

In the first reported case in the United States to decide the question of whether an action may be maintained for the wrongful pre-natal death of a child, Verkennes v. Corniea (1949), 229 Minn. 365, 38 N.W.2d 838, 839, 10 A.L.R.2d 634, 638, the court rejected the basic premise of Dietrich that 'the unborn child was a part of the mother.' Instead it quoted with approval a part of the following words from the dissent by Mr. Justice Boggs in Allaire v. St. Luke's Hospital (1900), 184 Ill. 359, 370, 56 N.E. 638, 641, 48 L.R.A. 255 (in which the majority had denied a live-born child the right to maintain an action for pre-natal injuries), as follows:

'A foetus in the womb of the mother may well be regarded as but a part of the bowels of the mother during a portion of the period of gestation; but if, while in the womb, it reaches that prenatal age of viability when the destruction of the life of the mother does not necessarily end its existence also, and when, if separated prematurely, and by artificial means, from the mother, it would be so far a matured human being as that it would live and grow, mentally and physically, as other children generally, it is but to deny a palpable fact to argue there is but one life, and that the life of the mother. Medical science and skill and experience have demonstrated that at a period of gestation in advance of the period of parturition the foetus is capable of independent and separate life, and that, though within the body of the mother, it is not merely a part of her body, for her body may die in all of its parts and the child remain alive, and capable of maintaining life, when separated from the dead body of the mother. If at that period a child so advanced is injured in its limbs or members, and is born into the living world suffering from the effects of the injury, is it not sacrificing truth to a mere theoretical abstraction to say the injury was not to the child, but wholly to the mother?' (56 N.E. at 641). ⁹

The Verkennes opinion concluded:

'It seems too plain for argument that where independent existence is possible and life is destroyed through a wrongful act a cause of action arises under the statutes cited.' (38 N.W.2d at 841).

But mere recognition of an unborn child's independent existence at the time of injury, is not everywhere sufficient to give rise to a cause of action for its wrongful death unless the child is born before it dies. Several states which permit a living child to maintain an action for a tortious injury suffered before a birth, deny its administrator, parent, or next of kin the right to maintain either a wrongful death action ¹⁰ or a survival action ¹¹ based on a pre-natal injury unless the child is first born alive. Sometimes the obstacle is wording peculiar to that state's wrongful death or survival statute as in California where a statute authorized an action for the death of a 'minor person', defined as a person under 21 years of age, with age required to 'be calculated from the first minute of the day on which persons are born . . ..' In Norman v. Murphy (1954), 124 Cal.App.2d 95, 268 P.2d 178, 181, the court said '. . . even if . . . an unborn, viable child is 'a person' within the meaning of our law, it could not be held to be 'a minor person'.' In some cases it is held that there is no provable pecuniary loss. ¹² Or 'proof of pecuniary injury and causation is immeasurably more vague than in suits for prenatal injuries.' ¹³ These reasons are often coupled with the assertion that compensation for the loss of the stillborn infant is provided in the mother's action for her own injuries in which she can recover for her own suffering ¹⁴ and emotional upset ¹⁵ occasioned by the stillbirth and that the mother's husband in his action for his losses occasioned by her injury may recover medical and interment expenses occasioned by the stillbirth. ¹⁶ All of these reasons (and others we have not mentioned) lead some to the conclusion that '(t)he considerations of justice which mandate the recovery of damages by an infant, injured in his mother's womb and born deformed through the wrong of a third party, are absent where the foetus, deprived of life while yet unborn, is never faced with the prospect of impaired mental or physical health.' ¹⁷ And, of course, that familiar self-justification of our sense of oughtness which is so often relied on by judges and lawyers, i.e., legislative intent, is not forgotten. ¹⁸

We fully recognize that any action to recover damages for a wrongfully caused death is purely a creature of statute ¹⁹ and concede, arguendo, that the Legislature has the power and right to create a cause of action in the father for the wrongful death of his children born alive while withholding that right as to children stillborn. ²⁰ But we find no objective reason for saying that the 1881 Legislature which gave the father the right to 'maintain an action for the injury or death of a child' did not intend 'child' to include a stillborn child. Whatever was in their minds is not recorded and is, at best, a matter of mere supposition. But if we may, arguendo, indulge in our own supposition it would be this: That since actions for pre-natal injuries and deaths were then unknown in Indiana jurisprudence ²¹ our lawmakers very probably gave no thought to whether they were creating an action for pre-natal injury or pre-natal death, or whether their word 'child' was the same word 'child' so often used in referring to a pregnant woman as being 'with child.' ²²

More helpful than speculation on the intent of 1881 legislators is consideration of the many instances in which, for other purposes, the law has recognized the unborn child as a person.

As to the early common law we are directed to this statement in 1 Blackstone Commentaries 129:

'Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother's womb. For if a woman is quick with child, and by a portion or otherwise killeth it in her womb; or if any one beat her whereby the child dieth in her body, and she is delivered of a dead child; this though not murder was by the ancient law homicide or manslaughter . . . An infant in (sic) ventre sa mere, or in the mother's womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate, made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards by such limitation,...