Eich v. Town of Gulf Shores

CourtSupreme Court of Alabama
Citation293 Ala. 95,300 So.2d 354
PartiesCharlotte EICH, as Mother of her unborn child, Deceased v. The TOWN OF GULF SHORES, Alabama, et al. SC 779.
Decision Date12 September 1974

Joseph J. Boswell, Patrick M. Sigler, and B. Nicholas Kearney, Mobile, for appellant.

Donald F. Pierce and Benjamen T. Rowe, Mobile, for appellees.

JONES, Justice.

This appeal comes to us from the Circuit Court of Baldwin County as a result of the granting of a motion to dismiss appellant's complaint on the ground that there is no cause of action for prenatal wrongful death of a stillborn fetus in Alabama. 1

We hold that such an action for prenatal injury resulting in the death of an eight and one-half month old fetus can be maintained under Tit. 7, § 119, Code of Alabama 1940 (Recomp.1958). To deny recovery where the injury is so severe as to cause the death of a fetus subsequently stillborn, and to allow recovery where injury occurs during pregnancy and death results therefrom after a live birth, 2 would only serve the tortfeasor by rewarding him for his severity in inflicting the injury. It would be bizarre, indeed, to hold that the greater the harm inflicted the better the opportunity for exoneration of the defendant. Logic, fairness and justice compel our recognition of an action, as here, for prenatal injuries causing death before a live birth.

This action was filed by the mother of the fetal child, alleging that the father had abandoned the child and thus had forfeited any right of action which he would normally have been entitled to maintain under the statute. Crenshaw v. Alabama Freight, Inc., 287 Ala. 372, 252 So.2d 33 (1971); Ex parte Roberson, 275 Ala. 374, 155 So.2d 330 (1963); McWhorter Transfer Co. v. Peek, 232 Ala. 143, 167 So. 291 (1936).

The basis of her complaint is that on March 2, 1974, she was involved in an automobile accident on Alabama Highway 59 South, less than a mile from Gulf Shores, Alabama. The driver of the other vehicle involved in the accident was Edgar Eugene Kinsey, a policeman for the Town of Gulf Shores. At the time of the accident, Mrs. Eich was eight and one-half months pregnant and, as a result, she suffered injuries which culminated in the death of her fetal child who was stillborn. She also alleges that the child's death was the proximate result of the negligence of Kinsey while he was acting within the line and scope of his authority for the Town of Gulf Shores.

Alabama's wrongful death statute, Tit. 7, § 119, Code of Alabama 1940 (Recomp.1958) states that the father, or the mother in the case of death or imprisonment of the father or desertion by the father, may maintain a wrongful death action on behalf of the minor child caused by the wrongful act, omission, or negligence of any person. Basically, this section is designed to furnish a complete system for all actions for the death of a minor child. Adkison v. Adkison, 46 Ala.App. 191, 239 So.2d 555 (1970), reversed on other grounds, 286 Ala. 306, 239 So.2d 562 (1970). Furthermore, the damages recoverable under this section are entirely punitive and are based on the culpability of the defendant and the enormity of the wrong, and are imposed for the preservation of human life. Magnusson v. Swan, 291 Ala. 151, 279 So.2d 422 (1973).

Appellee's principal position is that, as a matter of substantive statutory law, live birth is a prerequisite to liability for wrongful death in Alabama. Appellee would have us construe Tit. 7, § 119, Code of Alabama 1940 (Recomp.1958), strictly and as noninclusive in relation to a fetus. He grounds this contention on the assertion that it is the legislative intent of this section--the legal criterion for statutory interpretation--which is supportive of his position. However, we are not inclined to accept this argument. To the contrary, to allow recovery where the fetus is stillborn is essential to the effectuation of legislative intent. It is a deeply engrained principle of Alabama jurisprudence that the paramount purpose of our wrongful death statutes ( §§ 119 and 123) is the preservation of human life. 3 So pervasive was this dominant theme that our Court, as early as 1912, corrected the misapprehension that compensatory damages were allowable under the statutory phrase 'such damages as the jury may assess' in § 119, while only punitive damages were allowable under the same phraseology in § 123. Louisville & Nashville R.R. Co. v. Bogue, 177 Ala. 349, 58 So. 392 (1912).

The Court in Bogue, in giving a consistent interpretation to the two statutes, observed:

'Each section relates to homicides and confers a right of action unknown to the common law, and the language of each is identical with respect to the nature of the damages that may be recovered. 'Such damages as the jury may assess' cannot by any rational rule of construction mean punitive damages in the one, and compensatory damages in the other; and to so hold would in our opinion be simply an act of judicial legislation. The entire language of the statute follows as closely as possible the language of the older statute (section 2486) for the prevention of homicides; and the damages authorized under that statute have always been held to be punitive only.'

It was to implement this legislative intent, then, that the Alabama Supreme Court, Through its interpretation of the phrase 'such damages as the jury may assess,' provided vindication for the tortfeasor's wrongful conduct. To deny recovery would sanction the tortfeasor's wrongful act and would clearly negate the primary objective of the statute.

We recognize the cases cited by appellee construing the term 'minor child' as not including a fetus, 4 but are not persuaded that such a strict construction here would insure the necessary growth of the law in this vital area and the individual justice of the case before us. Also, we are not persuaded by appellee's separation of powers argument, nor by his implication that we would be judicially amending a legislative enactment.

In fact, by allowing recovery in an action of this nature, we are merely extending our judicial prerogative in concert with prior decisions of this Court. This Court decided in 1972 in Huskey v. Smith, 289 Ala. 52, 265 So.2d 596 (1972), that there existed in Alabama a cause of action for the wrongful death of a child which was viable at the time of the injury and which was born alive. And in the following year in Wolfe v. Isbell, 291 Ala. 327, 280 So.2d 758 (1973), our Court recognized that the concept of viability was irrelevant where wrongful death of a fetus born alive is concerned. Neither those two decisions nor the one we decide today is, in our view, an usurpation of the legislative function for it is often necessary to breathe life into existing laws less they become stale and shelfworn. This is not a confrontation with another branch of our government, but rather a unity of effort in order that existing law may become useful law to promote the ends of justice. Indeed, as we have already observed, it was by judicial interpretation, and not the express terms of the wrongful death statutes, that punitive damages only are allowable in such cases, and this for the avowed aim of accomplishing the primary purpose of the legislative intent--the preservation of human life.

Aside from his principal argument, appellee states that in an action for a prenatally induced death, live birth should be utilized as a cut-off point because it is inappropriate in every such case to depend upon a punitive, quasi-criminal wrongful death statute. We feel that this argument is not persuasive because it is illogical to allow liability to depend on whether death from fatal injury occurred before or after live birth. Reconciliation of the proposition that if death occurred after live birth a cause of action exists, but if death occurs prior thereto a cause of action does not exist, is extremely difficult at best. The proposition's inconsistency is best exemplified in the situation involving the death of twins who are wrongfully injured during pregnancy. To allow recovery to the one born alive, who subsequently dies, and to deny recovery to the stillborn who was injured in the same accident is obviously ludicrous. Stidam v. Ashmore, 109 Ohio App. 431, 434, 11 Ohio Op.2d 383, 385, 167 N.E.2d 106, 108 (1959). To balance the right to maintain the action upon whether the child fatally injured by the negligence of the defendant is born dead or alive is unjust and illusory. Therefore, because the punitive nature of our wrongful death statute demands the punishment of the tortfeasor, we do not believe that appellee's appropriateness argument is a valid one.

As the U.S. Supreme Court stated in Roe v. Wade, 410 U.S. 113, 162, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), some states have recently permitted the parents of a stillborn child to maintain an action for wrongful death because of prenatal injuries, the theory being that such an action is one to vindicate the parents' interest in the loss of the child. The Court further went on to say that, at least subsequent to the end of the first trimester of pregnancy, the state has a valid interest and duty in protecting such prenatal life, so long as that interest does not conflict with that of an individual's right to privacy. This is so because a potential future human life is present from the moment of conception and the state's interest and general obligation to protect life thus extends to prenatal life.

Appellee also contends that there exist several policy reasons why a cause of action should not exist without the prerequisite of live birth. These reasons include: the possibility of fraudulent claims; the problem of proof of causation; and the fear of double recoveries. As to the possibility of fraudulent claims, we believe that the interest of the plaintiff in having a cause of action far outweighs the theoretical possibility that recognition...

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