McAuley v. Wills

• Decision Date: 03 December 1982
• Docket Number: No. 64149,64149
• Citation: 298 S.E.2d 594,164 Ga.App. 812
• Parties: McAULEY et al. v. WILLS et al.
• Court: Georgia Court of Appeals

Page 594

298 S.E.2d 594

164 Ga.App. 812

McAULEY et al. v. WILLS et al.

No. 64149.

Court of Appeals of Georgia.

Dec. 3, 1982.

James L. Ford, Jule W. Felton, Jr., R. Matthew Martin, Atlanta, for appellant.

Donald M. Fain, Earl J. Van Gerpen, Atlanta, for appellee.

BIRDSONG, Judge.

Statute of Limitations--Wrongful Death. This is an appeal from an order dismissing the complaint of Mr. and Mrs. McAuley for the wrongful death of their infant child. Mr. and Mrs. McAuley filed their complaint on April 17, 1981, showing that Mrs. McAuley was a passenger in an automobile operated by defendant Wills which was involved in a one-car crash causing Mrs. McAuley to suffer paraplegia. The crash and consequential injuries occurred on March 31, 1979. Mrs. McAuley subsequently married and on August 7, 1980, gave birth to her first child, which died the following day from cardiac arrest caused by the infant's inability due to the mother's paraplegia to pass through the fetal course in an uneventful manner.

The McAuleys alleged the child's death was directly and proximately caused by the negligence of the defendant Wills. All the defendants jointly moved to dismiss the complaint against them on the ground that it failed to state a claim on which relief could be granted or alternatively that the action was barred by the applicable statute of limitations. The trial court, after hearing argument of counsel and examining the record, granted the motion to dismiss the complaint on the ground it did not state a claim on which relief could be granted. Held:

1. Although the trial court did not consider the alternative motion to dismiss as to the statute of limitations, we deem it necessary to refer thereto, for if the court is right for any reason in its order of dismissal, we will affirm.

2. The only alleged acts of negligence by Wills causing the accident and Mrs. McAuley's paraplegia occurred in March, 1979, a period in excess of two years prior to the filing of the suit in April, 1981. Mrs. McAuley's marriage followed the accident and in no way was related to Wills' negligence in driving. Conception of a child after marriage likewise was in no way related to any negligence by Wills in March, 1979. Lastly, there is no indication that the birth process of the child was induced by any act of negligence by Wills. Therefore, it is manifest that the marriage and conception were unrelated to any negligence by Wills but were after the fact decisions and acts of Mr. and Mrs. McAuley. The infant's unfortunate death resulted only after the conception and birth of the child, both of which occurred after the accident and were not attributable to Wills (i.e., if there had been no birth, there could have been no death). By making the wrongful death of the child the basis of and the starting point of the cause of action, the McAuleys necessarily excluded as the direct proximate cause of death the earlier negligence of Wills whose actions at that time (1979) could not directly have affected a life not even yet conceived and thus not in being.

A case somewhat analogous is Cheney v. Syntex Laboratories, 277 F.Supp. 386. In that case Cheney ingested medicine and was hospitalized for adverse side effects on or about April 20, 1965. On April 26, 1965 she suffered crippling injuries from a pulmonary embolism. Cheney brought suit on April 25, 1967, claiming solely for the injuries caused by the embolism two years earlier. However, as the negligent act was the furnishing of the medication and not the embolism the statute of limitations was held to bar the action because the real precipitant of the embolism was the ingestion of the medication on or before April 20, 1965, an act occurring at a time earlier than the two years permitted.

If such were not the rule, we would create a fissure in the law pertaining to limitations of actions. For instance, had the mother in this case been a five-year old child who suffered injuries resulting in paraplegia, who fifteen years later married and gave birth to an infant, which infant died because of the negligently caused paraplegia of fifteen years earlier, under the rule proposed, the action for wrongful death still would not be barred if brought within two years of the death. Such cannot be the law.

Though it is undisputed that the cause of death of the infant was cardiac failure resulting from negligently caused paraplegia to the mother, the statute began to run at the time the damage caused by the tortfeasor was inflicted (the injuries to Mrs. McAuley) and the tort was completed at a time when the afterborn infant was not yet conceived and thus was neither sui generis nor sui juris. Lavender v. Spetalnick, 161 Ga.App. 75, 289 S.E.2d 291. Inasmuch as the tort against Mrs. McAuley was inflicted and completed in March, 1979, the statute of limitations as to the injuries to the parents including the wrongful death of their child, barred the suit filed in April 1981 based upon wrongful death flowing from that initially inflicted tort. Ward v. Griffith, 162 Ga.App. 194, 290 S.E.2d 290; Stoddard v. Woods, 138 Ga.App. 770, 227 S.E.2d 403.

Judgment affirmed.

DEEN and SHULMAN, P.JJ., and BANKE and SOGNIER, JJ., concur.

POPE, J., concurs in judgment only.

DEEN, P.J., concurs specially in which SOGNIER, J., joins.

QUILLIAN, C.J., McMURRAY, P.J., and CARLEY, J., dissent.

DEEN, Presiding Judge, concurring specially.

The dissenting opinion seems to primarily rely on Hornbuckle v. Plantation Pipe Line Co., 212 Ga. 504, 93 S.E.2d 727 (1956). The latter cited case in turn is based on Tucker v. Howard L. Carmichael & Sons Inc., 208 Ga. 201, 65 S.E.2d 909 (1951). Both of these cases establish a principle and policy of protection for an unborn child during the pregnancy of the mother. Former Chief Justice Duckworth stated it clearly in the Hornbuckle case, 212 Ga. p. 505, 93 S.E.2d 727. "The ruling of the majority in this case extends that ruling to allow the child to maintain a suit for damages to the cell from which it came, even though the cell had been conceived ten seconds." (Emphasis supplied.) The Tucker rule was evolved from one of the giants of common law jurisprudence, Lord Blackstone. "This court regards Blackstone as an authority on the common law. Accordingly, we quote from Book I, page 130, of Blackstone's Commentaries on the Laws of England as follows: 'The right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother's womb... An infant in ventre sa mere, or in the mother's womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate, made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. And in this point the civil law agrees with ours.' " Tucker v. Howard L. Carmichael & Sons Inc., supra, 208 Ga. p. 203, 65 S.E.2d 909.

Judge Birdsong in his majority opinion is most persuasive in pointing out that the damage caused by the tortfeasor was done at the time of the original injury to the mother, and the later cardiac failure of the child was too remote. Lord Bacon has said in his Maxims: "It were infinite that the law to judge the causes of causes, and their impulsions one of another; therefore it contenteth itselfe with the immediate cause, and judgeth of acts by that, and not looking to any further degree." In Foundations of Legal Liability (Vol. 1, p. 110, 1906), Professor Street has summed it up: "The terms proximate and remote are those respectively applied to recoverable and non-recoverable damages... It is unfortunate that no definite principles can be laid down by which to determine this question. It is always to be determined on the facts of each case upon mixed consideration of logic, common sense, justice, policy and precedent... The best use that can be made of the authorities on proximate cause is merely to furnish illustrations of situations which judicious men upon careful consideration have adjudged to be on one side of the line or the other." (Emphasis supplied.)

See also Ga.Code Ann. § 105-2008, 2009 (OCGA §§ 51-12-8, 9) as to remote damages.

The statute of limitations must run from the time of the original tort, otherwise the defendant who thought he had paid originally at the first tort for all claims whatsoever would never be safe even after many years had elapsed. The defendant did not directly injure the child who at the time of the mother's injury had not been conceived. It is now too remote to label the original injury of the mother as part of the proximate cause of the cardiac failure of the child.

I am authorized to state that Judge SOGNIER joins in this special concurrence.

McMURRAY, Presiding Judge, dissenting.

The majority affirms the trial court's judgment of dismissal for a different reason than that given by the trial court. The trial court dismissed the action as failing to state a claim, due to remoteness, although the motion to dismiss alternatively raised a question of the statute of limitation as likewise barring the action. The majority view does, however, also consider the remoteness of the occurrence from the original injury, hence the statute of limitation would bar the action. I do not agree.

At the outset it must be pointed out that this is a case of first impression of whether in Georgia one may maintain an action for wrongful death of a child not yet conceived when the alleged negligent acts were committed against the mother. Accordingly, I feel it necessary to review the facts as to what occurred and the time element involved.

This is an appeal from an order dismissing the complaint of a father and ...