Hogan v. McDaniel

• Decision Date: 12 December 1958
• Citation: 8 McCanless 235,204 Tenn. 235,319 S.W.2d 221
• Parties: , 204 Tenn. 235 Joe E. HOGAN et al. v. Charlis McDANIEL.
• Court: Tennessee Supreme Court

Page 221

319 S.W.2d 221

8 McCanless 235, 204 Tenn. 235

Joe E. HOGAN et al. v. Charlis McDANIEL.

Supreme Court of Tennessee.

Dec. 12, 1958.

Tanner, Thrasher & Morgan, Chattanooga, for plaintiffs in error.

Goins & Gammon and Josiah Baker, Gus A. Wood, Jr., Chattanooga, for defendant in error.

NEIL, Chief Justice.

This case is before the Court on appeal from the action of the trial court in sustaining a demurrer to the plaintiffs' declaration, which reads in part as follows:

'That heretofore on or about the 29th day of January, 1958, at approximately 3:45 P.M. the decedent, an unborn child, viable, weighing 6 pounds 15 1/2 ounces, developed during 38 weeks of pregnancy of the mother, Mrs. Joe E. (Jo Etta) Hogan, was riding en ventre sa mere in automobile being driven by said Mrs. Joe E. (Jo Etta) Hogan, in a southerly direction on Highway 58 approaching the intersection of said highway with Turkey Foot Road, Hamilton County, Tennessee; that at said time and place the defendant, Charlie McDaniel, was driving a school bus, owned by him, in an easterly direction on Turkey Foot Road approaching Highway 58 that as the Hogan car was in the process of passing through the said intersection defendant McDaniel failed to bring his bus to a stop but overran the highway and drove the front end of his said bus into, upon and against the right side of the Hogan car knocking it out of control and causing it to plunge down an embankment overturning several times before it came to rest; that immediately before the collision Mrs. Hogan had been driving her car at a reasonable and proper rate of speed and in a proper manner and on the right hand or proper side of Highway 58 and so continued up to the time of the collision; that the defendant McDaniel operated his bus in a manner which was reckless, negligent and unsafe under the conditions then prevailing as will be hereinafter shown more fully so that the collision occurred and Mrs. Hogan was injured and her unborn male son was killed, all as a result of the defendant's negligence as hereinafter set forth.'

The plaintiffs are the parents of the unborn child mentioned in the declaration.

The suit is sought to be maintained under the Wrongful Death Statute (20-607, T.C.A.), which reads, as follows:

'The right of action which a person, who dies from injuries received from another, or whose death is caused by the wrongful act, omission, or killing by another, would have had against the wrongdoer, in case death had not ensued, shall not abate or be extinguished by his death, but shall pass to his widow, and, in case there is no widow, to his children or to his next of kin; or to his personal representative, for the benefit of his widow or next of kin; where his or her natural parents or parent or next of kin are unknown, then to his or her legally adoptive parent or parents, or to the administrator for the use and benefit of the said adoptive parents or parent; the funds recovered in either case to be free from the claims of creditors. In the case of the death of a married woman, such right of action shall pass to the surviving husband.'

The sole question at issue under the demurrer involves the right to sue for the death of an unborn viable child. The demurrer, however, poses three separate but related issues for decision, which thus appear on the defendant's brief:

'(1) Is an unborn viable child a 'person' within the meaning and contemplation of the Tennessee Wrongful Death Statutes?

'(2) Does an unborn viable child have a next of kin within the meaning and contemplation of the Tennessee Statutes of Descent and Distribution?

'(3) Has an unborn viable child a legal personality separate and distinct from its mother?'

The plaintiffs contend that this action is maintainable under the aforesaid statute in that:

'An unborn child, viable, weighing 6 pounds, 15 1/2 ounces, developed during 9 1/2 months of pregnancy, alive and capable of existence separate and apart from his mother is a 'person' under the Tennessee Wrongful Death Statute, and any right of action of said person for wrongful death survives and passes to the next of kin.'

The trial judge in a memorandum opinion held that the plaintiffs' right of action was controlled by the statute; that it was in derogation of the common law and should be strictly construed. In other words, if the statute is not broad enough to create a right in an unborn viable child to sue for its wrongful death then it has no right, it does not exist.

This statute in substance is declaratory of what is known as 'Lord Campbell's Act'. It is in no sense a part of the common law. Where a right of action is dependent upon the provisions of a statute, as in the case at bar, we are not privileged to create such a right under the guise of a liberal interpretation of it. Judicial legislation has long been regarded by the legal profession as unwise, if not dangerous business. It is generally an ill-starred adventure by wilful men.

Learned counsel for the plaintiffs have urged upon us the duty to follow what is claimed to be the 'trend of modern decisions' regarding the legal status of an unborn viable child. While we are not unfriendly to this suggestion, we cannot yield to it if the rights sought to be maintained are beyond the purview of the statute and contrary to the weight of authority.

At common law the right to recover damages for personal injuries was extinguished by the death of the injured person. This artificial rule of the common law prevailed in this State until the Act of 1851, Chapter 17:20-607, T.C.A.; Railway Co. v. Lilly, 90 Tenn. 563, 18 S.W. 243, 244. The original Act of 1851 has since been amended from time to time but the effect of the said Act as finally amended is to create a liability in favor of certain persons who are specifically pointed out. In Railway Co. v. Lilly, supra, it is said: '* * * the courts will not extend or enlarge that liaility by liberality of construction, but will confine it to cases clearly within the provisions of the act. No right of action will be inferred, no remedy will be given in favor of any persons, except those distinctly contemplated as beneficiaries.' (Emphasis ours.)

Counsel for the plaintiffs earnestly insists that this unborn viable child is 'a person' within the meaning of our Wrongful Death Statute, who, had its death not ensued, would have had a right of action against the defendant which passed to the plaintiffs as the sole next of kin of the deceased child. Several decisions are cited in support of this contention, and we will now take notice of them.

In Verkennes v. Corniea, 229 Minn. 355, 38 N.W.2d 838, 839, 10 A.L.R.2d 634, the theory that an unborn viable child is a person capable of an existence separate from its mother, citing authority, holds that under its Wrongful Death Statute such child may have a right of action for its negligent killing. The statute upon which such right of action rests provides:

'When death is caused by the wrongful act or omission of any person or corporation, the personal representative of the decedent may maintain an action therefor if he might have maintained an action, had he lived, for an injury caused by the same act or omission.'

The Court considered the case of Dietrich v. Inhabitants of Northampton, 138 Mass. 14, 52 Am.Rep. 242, and held: '* *...