Kwaterski v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 08 February 1967
• Citation: 148 N.W.2d 107,34 Wis.2d 14
• Parties: Karen D. KWATERSKI et al., Appellants, v. STATE FARM MUT. AUTOMOBILE INS. CO., a foreign corp. et al., Respondents.
• Court: Wisconsin Supreme Court

Page 107

148 N.W.2d 107

34 Wis.2d 14

Karen D. KWATERSKI et al., Appellants, v. STATE FARM MUT. AUTOMOBILE INS. CO., a foreign corp. et al Respondents.

Supreme Court of Wisconsin.

Feb. 8, 1967.

Edward P. Rudolph, Milwaukee, for appellants.

Kivett & Kasdorf, Milwaukee, Nonald J. Lewis, Milwaukee, of counsel, for respondents,

WILKIE, Justice.

The narrow issue presented on this appeal is whether an eighth-month, viable unborn child, whose later stillbirth is caused by the wrongful act of another, is 'a person' within the meaning of sec. 331.03, Stats. 1963, so as to give rise to a wrongful death action by the parents of the stillborn infant.

The wrongful death statute provides that:

'Whenever the death of a person shall be caused by a wrongful act, neglect or default and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liabile, if death had not ensued, shall be liable to an action for damages notwithstanding the death of the person injured; provided, that such action shall be brought for a death caused in this state.' ¹

An examination of the Wisconsin law of prenatal injuries must begin with Lipss v. Milwaukee E.R. & L. Co., ² in which case this court rejected a cause of action by a nonviable infant who received prenatal injuries. In Lipps this court said that a nonviable child could not exist separate from its mother and thus could not be an independent person to whom separate rights could accrue. At that time this court refused to give much value to the recognition of the nonviable infant as a separate entity in the criminal law, in property law, and in medical and scientific texts. ³

The right of recovery for prenatal injuries was again raised in Puhl v. Milwaukee Automobile Ins. Co. ⁴ In Puhl the plaintiff mother was 12 weeks pregnant when she was involved in an automobile accident. Subsequently she gave birth to her child, who was a mongoloid. Suit was brought on behalf of the mongoloid child, claiming that her mongoloid condition was caused by the accident. The trial court, following Lipps, denied recovery because the infant was not viable when it received injuries. On appeal, this court denied recovery because there was not sufficient evidence that the accident had caused the infant's mongoloid condition.

Although this holding disposed of the case, the court went on, in a thorough opinion by Mr. Justice HALLOWS, to discuss the then state of the law of prenatal injuries. This discussion was prompted, in part, by the fact that in Puhl the trial court had erroneously founded its dismissal order on Lipps. In Puhl the court concluded that Lipps need not be overruled because the mongoloid condition of the infant in Puhl was found not to have been caused by her prenatal injury.

Nevertheless, in the court's general discussion in Puhl of the law of prenatal injuries to infants, we completely rejected the concept of the child as a part of the mother, stating:

'The viability theory * * * fails to recognize the biological fact there is a living human being before viability. A child is no more a part of its mother before it becames viable than it is after viability. It would be more accurate to say that the fetus from conception lives within its mother rather than as a part of her.' (Emphasis added.) ⁵

The court gave two other reasons for denying the viability distinction. First, the court recognized analogies from the fields of criminal law and property law where the rights of unborn infants were protected. Second, the court said recovery was supported by moral grounds.

The court further stated:

'* * * Under this theory (biological theory) an unborn infant is not treated as a legal person but as a separate entity or human being in the biological sense from conception having a potentiality of personality which is not realized until birth. Injuries suffered before birth impose a conditional liability on the tort-feasor. This liability becomes unconditional, or complete, upon the birth of the injured separate entity as a legal person. If such personality is not achieved, there would be no liability because of no damage to a legal person.' (Emphasis added.) ⁶

Respondent argues that by this language Wisconsin holds that a stillborn infant cannot recover under the wrongful death statute. This is not so. In the above quoted language in Puhl we were concerned only with making it clear that for an unborn infant who is injured during gestation to have a cause of action in his own name and right that infant must be born alive. We were not discussing whether such an infant, stillborn, would be a 'person' under that statute.

We recognize that up to 1949 no American jurisdiction permitted wrongful death proceedings for a stillborn infant. In that year, the Minnesota court first permitted such a suit in Verkennes v. Corniea. ⁷ Since the Verkennes opinion, ten jurisdictions have expressly permitted suits on facts precisely equivalent to the case at bar, ⁸ and two others have indicated that such suits would be permitted. ⁹ Equally important, four federal courts have sustained such suits although the substantive state law these courts were applying had not directly resolved the issue. ¹⁰ In all of these cases, the infant child was viable at the time of the accident which caused it to be stillborn, and the rule of these cases has therefore been limited to a situation involving a viable child.

Thus, the weight of authority continues the trend noticed in Puhl, favoring recognition of an unborn child as a person for purposes of recovery under a wrongful death statute. There are at least four basic reasons which support recovery.

(1) A viable child is capable of independent existence and therefore should be recognized as a separate entity entitled to the protection of the law of torts. In Puhl we have already recognized that an unborn child is a separate legal entity.

(2) As stated in Puhl, the law recognizes an unborn child by protecting its property rights and rights of inheritance and also protects the unborn child against the crimes of others.

(3) If no right of action is allowed, there is a wrong inflicted for which there is no remedy. Denying a right of action for negligence acts which produce a stillbirth leads to some very incongruous results. For example, a doctor or a midwife whose negligent acts in delivering a baby produced the baby's death would be legally immune from a lawsuit. However, if they badly injured the child they would be exposed to liability. Such a legal rule would produce the absurd result that an unborn child who was badly injured by the tortious acts of another, but who was born alive, could recover while an unborn child, who was more severely injured and died as the result of the tortious acts of another, could recover nothing.

(4) A family who loses a child before it is born suffers a very grievous loss for which money damages are really inadequate. It is only equitable that a family should receive some compensation from a tort-feasor whose negligence caused the loss of a child.

A smaller group of cases supports the denial of a recovery for a stillborn infant under the wrongful death statutes of several states. ¹¹ Essentially the courts deny recovery for the following reasons:

(1) Precedent. This reason no longer applies since the weight of decisions now favors recovery. Moreover, many of the decisions cite American Jurisprudence and Corpus Juris Secundum, but these authorities have since changed their position. ¹²

(2) A child has no juridical existence apart from its mother. This is an assertion which has no scientific or medical basis in fact, and this theory was rejected by this court in Puhl.

(3) Permitting such suits would open the door to fraudulent claims and proof of a causal connection would be overly speculative. These objections do not go to the validity of the cause of action. As we said in Puhl:

'* * * Adequate safeguards against fraudulent claims can be devised. Such claims are not unknown in the law. If the common law has any vitality it has been argued that is should be elastic enough to adapt itself to current medical and scientific truths so as to function as an efficient rule of conduct in our modern complex society.' ¹³

(4) To sanction such a cause of action would create a new right which is a matter for the legislature. But the legislatures enacted wrongful death statutes to give some limited relief from a very illogical rule created by Lord Ellenborough. ¹⁴ As such they are remedial statutes and should be broadly construed to effect their purpose. The argument that the legislature never intended that such wrongful death actions apply to stillborn infants is also not valid. This law was passed in 1857 and little was known at that time concerning the life of an infant in the womb.

(5) Since the child is part of the mother, the wrong will be remedied if the mother sues and recovers for her injuries. Yet we know of no court that has permitted a plaintiff mother to include injury to or death of a child as part of her injuries.

We are satisfied that, on the whole, the better reasoned cases appear to permit recovery for the wrongful death of a stillborn infant. ¹⁵ We conclude, therefore, that a viable infant who receives an injury and by reason thereof is stillborn is a 'person' within the meaning of sec. 331.03, Stats. 1963 (now sec. 895.03, Stats.), so as to give rise to a wrongful death action by the parents of the stillborn infant. We are not here concerned with a nonviable fetus and we, therefore, do not decide whether such a nonviable infant who receives an injury and is stillborn by reason thereof is such a person within the meaning of such section.

Order reversed.

1 Sec. 331.03, Stats. 1963, renumbered sec. 895.03, ch. 66, Laws of 1965.

2 (1916), 164 Wis. 272, 159 N.W. 916...