Danos v. St. Pierre

• Decision Date: 02 March 1981
• Docket Number: 66882,Nos. 66876,s. 66876
• Citation: 402 So.2d 633
• Parties: Darrell DANOS et al. v. Terry ST. PIERRE et al.
• Court: Louisiana Supreme Court

Page 633

402 So.2d 633

Darrell DANOS et al. v. Terry ST. PIERRE et al.

Nos. 66876, 66882.

Supreme Court of Louisiana.

March 2, 1981.

On Rehearing July 2, 1981.

Rehearing Denied Sept. 4, 1981.

On Rehearing

Steven B. Witman, Johnston & Duplass, New Orleans, for applicant, Allstate Ins. Co.

Darryl J. Carimi, Bordelon & Carimi, Gretna, L. Albert Forrest, Roy & Forrest, Ltd., New Iberia, John L. Lanier, Pugh, Lanier & Pugh, Thibodaux, for respondents in 66,882.

L. Albert Forrest, Roy & Forrest, Ltd., New Iberia, John L. Lanier, Pugh, Lanier & Pugh, Thibodaux, for defendant-applicant in 66,882.

Steven B. Witman, Johnston & Duplass, New Orleans, Darryl J. Carimi, Bordelon & Carimi, Gretna, for plaintiff-respondents in 66,882.

DIXON, Chief Justice.

Writs were granted in these cases to review a ruling by the district court, affirmed by the Court of Appeal (383 So.2d 1019 (La.App. 1st Cir. 1980)), that the mother and father of a stillborn child could recover damages for the wrongful death of a fetus. The district court judgment awarded damages to the husband for his injuries, plus $10,000 for "loss of his unborn child." His wife was awarded $20,000 for her "pain, suffering and mental anguish and anxiety," plus $10,000 for the "loss of her unborn child." The only injuries of the mother discussed by the trial judge were a rejected claim for dental injuries and the abdominal injury which resulted in the hospitalization of the mother and the stillbirth of the six or seven month old fetus.

We affirm the judgments of the courts below, except for the awards of $10,000 to each parent for the loss of the unborn child, which we reverse. We hold that the mother may recover damages for an injury which caused a miscarriage, but that there is no right of recovery under C.C. 2315 for the wrongful death of a fetus.

C.C. 2315, the basis for the claims in these cases, has been much amended through the years (see Voss, The Recovery of Damages for Wrongful Death, 6 Tul.L.Rev. 201 (1931)), almost every time in response to a restrictive interpretation by this court limiting recovery to claimants. The predecessor of this article in C.C. 1825 eliminated explanatory words from the 1808 version (Art. 16 p. 320) reproducing Art. 1382 of the Code Napoleon. Those words now form the first sentence of 2315: "Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." In 1851 this court held that there could be no recovery for the wrongful death of another, in spite of the broad language of the code article. Hubgh v. New Orleans and Carrollton Railroad Co., 6 La.Ann. 495 (La.1851). Act 223 of 1855 amended the article and provided for the survival of a personal injury action "in case of death" to certain beneficiaries. Act 71 of 1884 added "an additional cause of action, the right of the survivors to damages sustained to themselves by reason of the wrongful death of their parent or husband." Wharton, Rights of Children to an Action for Wrongful Death Under Article 2315, 14 Tul.L.Rev. 612, 613 (1940).

In addition to the first sentence, C.C. 2315 now provides:

"...

The right to recover damages to property caused by an offense or quasi offense is a property right which, on the death of the obligee, is inherited by his legal, instituted, or irregular heirs, subject to the community rights of the surviving spouse.

The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and (3) the surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child or parent surviving. The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased. A right to recover damages under the provisions of this paragraph is a property right which, on the death of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs, whether suit has been instituted thereon by the survivor or not.

As used in this article, the words 'child', 'brother', 'sister', 'father', and 'mother' include a child, brother, sister, father, and mother, by adoption, respectively."

Only one reported decision has been found that was required to address the issue which the present cases raise. ¹ In Wascom v. American Indemnity Corp., 348 So.2d 128 (La.App. 1st Cir. 1977), damages were sought for the loss of twin fetuses that were delivered stillborn. The court sustained exceptions of no cause or right of action on the ground that C.C. 2315 does not apply to "the death of a child never born alive." 348 So.2d at 130. This court denied writs, stating that the judgment was correct (an action which does not make law). 350 So.2d 1224 (La.1977). The Court of Appeal in the Wascom case relied upon C.C. 28, which states:

"Children born dead are considered as if they had never been born or conceived."

Dicta in a prior decision indicated that Article 28 established the principle that child born dead never acquired "a legal personality distinct from its mother." Youman et al. v. McConnell & McConnell, Inc., 7 La.App. 315, 317 (2d Cir. 1927). Other cases allowing an expectant mother's recovery for damage caused by miscarriages or abortions are consistent with this principle. See, e. g., White v. Juge, 176 La. 1045, 147 So. 72 (1933); Joiner v. Texas & P. Ry. Co., 128 La. 1050, 55 So. 670 (1911); Stewart v. Arkansas Southern R. Co., 112 La. 764, 36 So. 676 (1904); Sibley v. Wilcox, 125 So.2d 49 (La.App. 1st Cir. 1960); Moncrieff v. Lacobie, 89 So.2d 471 (La.App. 1st Cir. 1956); Green v. Frederick, 141 So. 505 (La.App. 1st Cir. 1932).

The plaintiffs contend that Article 28 was not meant to define legal personality for the purposes of personal injury and wrongful death, but that it only applies to inheritance and other property rights. See Note, Wrongful Death Right of Action Viable Unborn Child, 6 Loy.L.Rev. 157 (1952). It is entirely clear, as all parties apparently concede, that a stillborn fetus has no cause of action for its own injuries. A cause of action is a property right. It may arise by the effect of obligations or through the operation of law. C.C. 870. The ownership of property and rights in property is confined to natural or juridical persons. C.C. 479. Cf. C.C. 493 (1870). In terms of property rights, which include rights of inheritance, a child's legal personality exists from the moment of its conception. See C.C. 29, 953-57 and 1482. However, under Article 28, the effect of acquiring a legal personality is dissolved if the child is not born alive; the stillborn child cannot acquire a cause of action, or any other form of property. Cf. C.C. 955-56 and 1482. A cause of action to recover damages caused by prenatal injury is a property right that remains inchoate until the "person" so injured is born alive. Compare Note, Torts Prenatal Injuries Characterization of Unborn Child as a "Person" Immaterial to Recovery, 20 La.L.Rev. 810 (1960); Comment, Tort Liability for Prenatal Injury, 24 Tul.L.Rev. 435 (1950).

The Code establishes a clear and consistent scheme in regard to the definition of legal personality. From the moment of conception, a child is considered in law as if it had already been born, and is entitled to certain rights and privileges. However, this reputed legal personality is conditioned upon the child's live birth; if the child is not born alive, the effects of its fictional legal personality are considered never to have existed. This scheme was explained in Cooper v. Blanck, 39 So.2d 352 (Orleans App.1923). There, a child was born prematurely as a result of an injury to its mother; it died shortly after its birth. The court concluded that the fact that the injury was inflicted prenatally did not alter the child's right to bring suit, or the parents' right to bring the action after the child's death. The decision was based upon C.C. 29, which states in part:

"Children in the mother's womb are considered, in whatever relates to themselves, as if they were already born ..."

The court specifically ruled that this provision was not limited to inheritance rights. As noted, the article does apply to the acquisition of property rights, and a cause of action is such a right. The court correctly stated that:

"We think it manifest that injury to a child at this period is in contemplation of law, injury to a living child, for which the child if it survives its birth, may maintain an action under art. 2315 of our Code ..." 39 So.2d at 360 (emphasis added).

However, the court went on to indulge in the following dictum:

"... and if the child be killed at this period, before its birth, we see no reason why its parents cannot maintain an action for the death of their child." 39 So.2d at 360.

It is also argued that, since Article 28 predates the enactment of a wrongful death provision in Louisiana, the article can have no application to cases of wrongful fetal death. See Stone, Tort Doctrine, 12 Louisiana Civil Law Treatise § 63 (1977). While scholarship on the source provisions of the law is enlightening, more recent legislative action should not be ignored. In 1976 Senate Bill 261 was proposed. The bill's avowed purpose was:

"To amend and reenact Article 2315 of the Louisiana Civil Code, relative to liability for acts which cause damage, to provide that the terms 'man,' 'another' and 'person' shall include a human being from the moment of conception."

The bill was referred to the Committee on the Judiciary, but was never enacted. ² Had the bill become law, an action for wrongful fetal death would have been permitted. ³ The...