Graf v. Taggert

Citation204 A.2d 140,43 N.J. 303
Decision Date19 October 1964
Docket NumberNo. A--5,A--5
PartiesRuth GRAF and Walter P. Graf, her husband, and Walter P. Graf, Administrator, etc., Plaintiffs-Appellants, v. Douglas TAGGERT and Eleanor Taggert, Defendants-Respondents.
CourtUnited States State Supreme Court (New Jersey)

Edward J. Johnson, Jr., Bound Brook, for plaintiffs-appellants (Samuel Chiaravalli, Bound Brook, attorney).

Francis J. Beyrent, Morristown, for defendants-respondents (Schenck, Price, Smith & King, Morristown, attorneys).

The opinion of the court was delivered by

PROCTOR, J.

The sole question on this appeal is whether there is a right of recovery under the New Jersey Death Act, N.J.S. 2A:31--1 et seq., N.J.S.A., by the administrator Ad prosequendum of a stillborn child who died as a result of injuries received while En ventre sa mere.

The facts are stipulated. On June 16, 1962 Mrs. Graf was injured in a collision between her husband's automobile, which she was driving, and defendants' vehicle. At that time she was seven months pregnant and as a result of the collision her unborn child suffered injuries from which it subsequently died and was stillborn on July 10, 1962. Mrs. Graf brought a negligence action to recover for the injuries she sustained. Mr. Graf sued Per quod. In the third count of the complaint he also sued as administrator Ad prosequendum of the estate of the stillborn child, seeking recovery for the benefit of Mrs. Graf, himself, and their two sons under the Death Act. On defendants' motion for summary judgment as to the wrongful death count, the trial court held that as a matter of law no cause of action exists under the statute where the child is not born alive. From a final judgment dismissing the wrongful death count the plaintiffs appealed. R.R. 4:55--2. This Court certified the matter before argument in the Appellate Division. R.R. 1:2--1(d).

Our Death Act in pertinent part provides:

'2A:31--1.

'When the death of a person is caused by a wrongful act, neglect or default, such as would, if death had not ensued, have entitled the person injured to maintain an action for damages resulting from the injury, the person who would have been liable in damages for the injury if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured and although the death was caused under circumstances amounting in law to a crime.'

'2A:31--5.

'In every action brought under the provisions of this chapter the jury may give such damages as they shall deem fair and just with reference to the pecuniary injuries resulting from such death to the persons entitled to any intestate personal property of the decedent.'

The plaintiffs contend that an unborn child is a 'person' within the meaning of that term as used in N.J.S. 2A:31--1, N.J.S.A. They rely on Smith v. Brennan, 31 N.J. 353, 157 A.2d 497 (1960), where this Court held that a child may recover for tortiously inflicted prenatal injuries. They argue that since a child could maintain such an action had it survived, the statute therefore creates in them the right to recover damages for its death. But this argument begs the question whether an unborn child is a person within the meaning of the statute.

The language in section 1 (N.J.S. 2A:31--1, N.J.S.A.): '* * * such as would, if death had not ensued, have entitled the person injured to maintain an action for damages * * *.' was a limitation intended to preclude recovery where the injured person could not have recovered because the defendant did not commit a wrongful act or the deceased's own conduct would have barred his right to recover. See Knabe v. Hudson Bus Transportation Co., 111 N.J.L. 333, 168 A. 418 (E. & A. 1933); Batton v. Public Service Corporation of N.J., 75 N.J.L. 857, 69 A. 164, 18 L.R.A.,N.S., 640 (E. & A. 1908). In short if the deceased could not have recovered, his beneficiaries may not recover. But the converse of that proposition, i.e., if the deceased could have recovered, the beneficiaries can, does not necessarily follow. Section 1 contains two conditions for recovery: (1) that the injured party be a 'person' and (2) that he be entitled to recover if he had not died. That the satisfaction of the second condition does not determine the first condition is evident from this Court's opinion in Smith v. Brennan, supra, where we allowed recovery to a surviving child for his prenatal injuries, but said 31 N.J. at p. 364, 157 A.2d at p. 503:

'The semantic argument whether an unborn child is a 'person in being' seems to us to be beside the point. There is no question that conception sets in motion biological processes which if undisturbed will produce what every one will concede to be a person in being. If in the meanwhile those processes can be disrupted resulting in harm to the child when born, it is immaterial whether before birth the child is considered a person in being. And regardless of analogies to other areas of the law, justice requires that the principle be recognized that a child has a legal right to begin life with a sound mind and body.'

See also In re Peabody, 5 N.Y.2d 541, 186 N.Y.S.2d 265, 158 N.E.2d 841 (Ct.App.1959).

A number of jurisdictions have been called on to decide whether an unborn child is a person under wrongful death act provisions which are similar or identical to our section 1. The decisions are in conflict. Several hold that a viable fetus, i.e., one capable of independent existence apart from its mother, is a person. Fowler v. Woodward, S.C., 138 S.E.2d 42 (Sup.Ct.1964); State, Use of Odham v. Sherman, 234 Md. 179, 198 A.2d 71 (Ct.App.1964); Mitchell v. Couch, 285 S.W.2d 901 (Ky.Ct.App.1955); Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838, 10 A.L.R.2d 634 (Sup.Ct.1949); Rainey v. Horn, 221 Miss. 269, 72 So.2d 434 (Sup.Ct.1954). On the other hand, several hold that the unborn child is not a person. Drabbles v. Skelly Oil Co., 155 Neb. 17, 50 N.W.2d 229 (Sup.Ct.1951); Howell v. Rushing, 261 P.2d 217 (Olka.Sup.Ct.1953); Durrett v. Owens, 371 S.W.2d 433 (Tenn.Sup.Ct.1963). Commentators are likewise in disagreement. See Notes, 15 Mo.L.Rev. 211, 212, 230 (1950). Some cases have held the unborn child a 'person' by use of analogy to criminal and property law. E.g., Poliquin v. MacDonald, 101 N.H. 104, 135 A.2d 249 (Sup.Ct.1957). But see Carroll v. Skloff, 415 Pa. 47, 202 A.2d 9 (Sup.Ct.1964). (Reaching a conclusion contrary to a prior federal decision interpreting Pennsylvania law. Gullborg v. Rizzo, 331 F.2d 557 (3 Cir.1964).) For a general discussion see White, 'The Right of Recovery for Prenatal Injuries,' 12 La.L.Rev. 383 (1952). Other authorities have stated that the law considers the unborn child a person in being only where it is to the child's benefit, and a wrongful death recovery does not benefit the child but his survivors. In re Scanelli, 208 Misc. 804, 142 N.Y.S.2d 411 (Surr.Ct.1955); Comment, 21 Ohio St.L.J. 677, 678 (1960). There are respectable arguments on both sides as to whether an unborn child is a person within the meaning of wrongful death acts. However, it is not necessary for us to base our decision in this case on the resolution of that debatable issue.

We have pointed out that section 1 (N.J.S. 2A:31--1, N.J.S.A.) contains two prerequisites to the right to recover. Section 5 (N.J.S. 2A:31--5, N.J.S.A.) contains another. That section provides: '* * * the jury may give such damages as they shall deem fair and just with reference to the pecuniary injuries resulting from such death * * *.' Lord Campbell's Act, 9 & 10 Vict., c. 93 (1846), the English ancestor of our Death Act and most other wrongful death acts in this country, did not expressly limit damages to pecuniary injuries, but the English courts shortly thereafter created such a limitation. Blake v. Midland Ry. Co., 18 Q.B. 93, 118 Eng.Rep. 35 (1852). When our statute was enacted in 1848 it expressly limited damages to pecuniary loss. The same limitation remains today. 1 The act created a new cause of action for the loss suffered by the designated beneficiaries, measured by their reasonable expectations of pecuniary advantage from the continuance of the life of the deceased. Paulmier, adm'r of Carhart v. Erie R.R. Co., 34 N.J.L. 151 (Sup.Ct.1870). In the absence of pecuniary loss the cause of action will not lie. Cooper v. Shore Electric Co., 63 N.J.L. 558, 567, 44 A. 633 (E. & A. 1899); Turon v. J. & L. Construction Co., 8 N.J. 543, 556, 86 A.2d 192 (1952). In the latter case nominal damages were allowed on appeal. Id., at p. 561, 86 A.2d 192. But there was no question that the decedent's widow had sustained a substantial pecuniary loss. The only issue was whether that loss had been fully compensated by a settlement with joint tortfeasors.

Included in pecuniary loss are not only net earnings but also loss of services having a pecuniary value which the decedent, had he lived, might have rendered. Loss is not limited within the minority of a child, but may include the deprivation of possible pecuniary contributions which would have been made by the decedent thereafter. McStay v. Przychocki, 7 N.J. 456, 463, 81 A.2d 761 (1951). However, our courts have consistently construed pecuniary loss to exclude damages for mental suffering and loss of society. Cooper v. Shore Electric Co., supra; McStay v. Przychocki, supra; Bohrman v. Pennsylvania R.R. Co., 23 N.J.Super. 399, 405, 93 A.2d 190 (App.Div.1952). Such losses are virtually certain to follow from the loss of a child of any age.

By contrast, the younger the child is at the time of its death, the more speculative and uncertain the pecuniary loss. In Bohrman, supra, the court was concerned with the death of an eighteen-year-old girl. The plaintiffs were able to show that the girl was healthy and intelligent; that she had chosen a vocation, hair stylist, which would be lucrative to her and her parents; that her talents were above the average of those in that profession; and that she had...

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