Mace v. Jung

• Decision Date: 30 November 1962
• Docket Number: Civ. No. A-67-62.
• Citation: 210 F. Supp. 706
• Parties: Grace MACE, Special Administratrix of the Estate of Baby Mace, deceased, Plaintiff, v. Morris C. JUNG, Defendant.
• Court: U.S. District Court — District of Alaska

210 F. Supp. 706

Grace MACE, Special Administratrix of the Estate of Baby Mace, deceased, Plaintiff, v. Morris C. JUNG, Defendant.

Civ. No. A-67-62.

United States District Court D. Alaska, at Anchorage.

November 30, 1962.

James K. Tallman (of Bell, Sanders & Tallman), Anchorage, Alaska, for plaintiff.

Daniel A. Moore, Jr. (of Plummer, Delaney & Wiles), Anchorage, Alaska, for defendant.

HODGE, Chief Judge.

Plaintiff brings this action as Special Administratrix of the Estate of Baby Mace, deceased, for the wrongful death of such child as the result of defendant's alleged negligence in an automobile collision between the defendant's automobile and one operated by the plaintiff, on February 16, 1961. The complaint alleges that at such time and place plaintiff was pregnant with such child "due to be born in approximately four months" and that the child died as the result of the collision. The action is predicated upon the Alaska Wrongful Death Act, providing that when the death of a person is caused by the wrongful act of another, the personal representative of the former may maintain an action against the latter "if the former might have maintained an action, had he lived". Sec. 61-7-3 A.C.L.A.1949 as amended by Chapter 163 S.L.A.1960. The case was originally brought in the Superior Court of the State of Alaska and was removed to this court by reason of diversity of citizenship (28 U.S.C.A. § 1332).

The defendant has moved for summary judgment, supported by the uncontroverted affidavit of Dr. Rudy J. Leong, who attended plaintiff at the time of delivery of the unborn child the day following the accident, stating that she had suffered a spontaneous abortion of a "non-viable 4 to 4½ months' fetus" which had succumbed within one or two days before delivery.

The principal issue to be determined is whether or not, under such circumstances, a cause of action exists for recovery for the death of such unborn child. State law should govern, but there is no reported decision of the Alaska courts on this question. It is agreed that until about 1946 the rule prevailing in the United States, followed by both state and federal courts, was that recovery could not be had for the wrongful death of an unborn child, since the child was not a "person" within the meaning of the wrongful death statutes, following the early decision of Dietrich v. Northampton (1884), 138 Mass. 14, 52 Am.Rep. 242. However, in recent years there has been a considerable trend in judicial decisions allowing such action in some states, under similar wrongful death statutes, (although others hold to the contrary) in the following situations:

(1) Where the child was viable at the time of the act complained of but was delivered dead. Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838, 10 A.L.R.2d 634; Wendt v. Lillo (Iowa 1960), 182 F. Supp. 56; Hale v. Manion, 189 Kan. 143, 368 P.2d 1.

(2) Where the child was viable, was delivered alive and died as a result of the injuries. Amann v. Faidy, 415 Ill. 422, 114 N.E.2d 412; Keyes v. Construction Service, Inc., 340 Mass. 633, 165 N.E.2d 912.

The term "viable" is determined to mean capable of living independently of the mother.

Plaintiff urges that we should follow the "modern trend" and allow recovery where a nonviable unborn child was delivered dead, but no case has been cited to the court and none has been found allowing recovery in such instance. The only cases found directly passing upon this issue are West v. McCoy, 233 S.C. 369, 105 S.E.2d 88, and Keyes v. Construction Service, Inc., supra. In West v. McCoy the Supreme Court of South Carolina held that an action would not lie for wrongful death of an unborn baby as a result of injury to a five and a half months pregnant mother. The court discusses the comparatively recent decisions supporting the view that an unborn child, viable and capable of existing independently of its mother, may, after birth, maintain an action for such injuries, but holds that:

"In instant case, we are not concerned with death after birth, neither does it appear that the child was viable at the time of injury or delivery * * *. The policy considerations which call for a right of action when a child survives do not necessarily apply in the absence of survival."

In the Keyes case the court, in allowing recovery, makes this comment:

"If the child was stillborn the plaintiff would have no right of action."

Considerable discussion is devoted in the briefs to the analogous situation of an action to recover on behalf of a living child damages for prenatal injuries occasioned by the negligence of another, upon which point there are a large number of decisions of the state courts. The more recent decisions, indicative of the "more liberal and realistic approach to the problem" urged by plaintiff, support the view that a viable unborn child may, after birth, maintain an action for such injuries. West v....