O'Neill v. Morse

• Decision Date: 09 December 1969
• Docket Number: Docket No. 6467,No. 3,3
• Citation: 20 Mich.App. 679,174 N.W.2d 575
• Parties: James E. O'NEILL, Administrator of the Estate of Baby Boy Pinet, Deceased, Plaintiff-Appellant, v. Eldon MORSE, Bernice Morse, and Gary R. Root, jointly and severally, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 575

174 N.W.2d 575

20 Mich.App. 679

James E. O'NEILL, Administrator of the Estate of Baby Boy Pinet, Deceased, Plaintiff-Appellant, v. Eldon MORSE, Bernice Morse, and Gary R. Root, jointly and severally, Defendants-Appellees.

Docket No. 6467.

Court of Appeals of Michigan, Division No. 3.

Dec. 9, 1969.

Released for Publication March 4, 1970.

Peter F. Cicinelli, Cicinelli, Mossner, Majoros, Harrigan & Alexander, Saginaw, for plaintiff-appellant.

Heilman, Purcell, Tunison & Cline, Smith, Brooker, Harvey & Cook, Saginaw, for defendants-appellees.

Before FITZGERALD, P.J. and R. B. BURNS and BRONSON, JJ.

R. B. BURNS, Judge.

Carol Pinet, eight months pregnant, was struck by an automobile driven by defendant Gary R. Root after his vehicle had collided with an automobile owned by defendant Eldon Morse and driven by defendant Bernice Morse. As a result of the accident Mrs. Pinet and her unborn child were injured. Subsequently, the child was stillborn. The case was dismissed by the trial court on the ground that an unborn child is not a person within the meaning of the Michigan wrongful death act. M.C.L.A. § 600.2922 (Stat.Ann.1969 Cum.Supp. § 27A.2922).

Plaintiff appeals, claiming such an interpretation denies the plaintiff 'due process of law' and 'equal protection of the law' under the Federal constitution ¹ and the Michigan constitution of 1963. ²

This question has not been answered by any decisions of the Michigan Supreme Court or the United States Supreme Court. The Michigan Supreme Court in Powers v. City of Troy (1968), 380 Mich. 160, 156 N.W.2d 530, held that an unborn child negligently injured and subsequently stillborn was not a 'person' within the meaning of the Michigan wrongful death act. Accordingly, we hold that such an unborn child is not a 'person' within the meaning of the 'due process' and 'equal protection' articles of the United States Constitution and the Michigan Constitution of 1963.

Affirmed. Costs to appellees.

BRONSON, Judge (dissenting).

The development of our constitutional democracy and the constantly evolving legal history of our Bill of Rights guaranteeing 'due process' and the 'equal protection of the laws' to all persons are not accidental.

Through the years the State and Federal courts, including the United States Supreme Court, have struggled with the meaning of the word 'person' as that term is used in the Bill of Rights.

There was a time, early in our Nation's history, when Indians were not regarded as persons, and the courts had to make it plain that indeed Indians were persons, entitled to constitutional guarantees. See 42 C.J.S. Indians § 1, p. 647; United States, ex rel. Standing Bear v. Crook (C.C.Neb.1879), 25 Fed.Cas.P.No. 695, 696 (Fed.Cas.No. 14,891) (5 Dill 453); United States v. Shaw-Mux (D.Ore.1873), 27 Fed.Cas.P.No. 1049 (Fed.Cas.No. 16,268) (2 Sawyer 364); United States v. Miller (D.Nev.1901), 105 F. 944.

In another series of cases the courts made it plain that aliens (non-citizens) were 'persons' entitled to the protection of the constitutional guarantees. See Marcello v. Ahrens (C.A.5, 1954), 212 F.2d 830, 837; In re Lee Wee's Petition (S.D.Cal., 1956), 143 F.Supp. 736, 738; United States ex rel. Paktorovics v. Murff (C.A.2, 1958), 260 F.2d 610, 614.

In other cases, questions arose as to whether convicts or felons were 'persons' entitled to constitutional protection, and the decision was made that a convicted felon, even though civilly 'dead' was nevertheless a person entitled to protection under the Fourteenth Amendment. See In re Jones (1962), 57 Cal.2d 860, 862, 22 Cal.Rptr. 478, 480, 372 P.2d 310, 312, and cases cited therein.

Questions also arose as to whether corporations were persons within the meaning of the clauses granting all persons due process and the equal protection of the laws, and our courts decided that they were. See Pembina Consolidated Silver Mining & Milling Co. v. Pennsylvania (1888), 125 U.S. 181, 8 S.Ct. 737, 31 L.Ed. 650, 653; Smyth v. Ames (1898), 169 U.S. 466, 522, 18 S.Ct. 418, 42 L.Ed. 819; Providence Journal Co. v. McCoy (D.R.I.1950), 94 F.Supp. 186; aff'd. (C.A.1, 1951), 190 F.2d 760, 764; D.D.B. Realty Co. v. Merrill (D.Vt.1964), 232 F.Supp. 629, 637. See, also, Turnbull v. Prentiss Lumber Co. (1884), 55 Mich. 387, 393, 21 N.W. 375 and Chicago & N.W.R. Co. v. Ellson (1897), 113 Mich. 30, 33, 71 N.W. 324.

A labor union has been found to be a 'person' within the constitutional meaning of that term. See Penello v. Milk Drivers & Dairy Employees Local Union (D.Md., 1957), 156 F.Supp. 366, 369.

More recently, the United States Supreme Court has made it plain that the guarantees spelled out in our Constitution are not the exclusive property of adults, but apply to children as well.

In In re Gault (1967), 387 U.S. 1, 13, 87 S.Ct. 1428, 18 L.Ed.2d 527, 538, Mr. Justice Fortas, writing for the majority, said: 'neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.'

If the Fourteenth Amendment and the Bill of Rights protect children and infants, do they not also protect unborn children, such as Baby Boy Pinet, an eight-month-old fetus, made of flesh and bone and blood? Is not such a child equally a 'person' along with such inanimate 'persons' as corporations and labor unions?

What is at stake in this litigation is whether Baby Boy Pinet, an unborn child--killed by the wrongful acts of the defendants--was or was not a human being, a 'person' entitled to the Constitution's protections given to all persons in this State and Nation. In LaBlue v. Specker (1960), 358 Mich. 558, 100 N.W.2d 445, our State Supreme Court unanimously held that a two and one-half month old fetus was indeed a 'child' or 'person' within the meaning of another Michigan statute, the Michigan dram shop law (C.L.S.1956, § 436.22 (Stat.Ann.1957 Rev. § 18.993)). In LaBlue, the Michigan Supreme Court relied heavily on Williams v. Marion Rapid Transit, Inc. (1949), 152 Ohio St. 114, 87 N.E.2d 334, 10 A.L.R.2d 1051, a decision which held that an unborn child is a 'person' within the Constitutional provision giving every 'person' a remedy for injury done him in his person (see 358 Mich. p. 563, 100 N.W.2d 445 of LaBlue).

What our Supreme Court appears to have said by its decision in Powers v. City of Troy (1968), 380 Mich. 160, 156 N.W.2d 530, is that an unborn child may be a 'person' for the purpose of some laws but will not be a 'person' for the purpose of other laws. ¹ Such a view is less than consistent in keeping with fundamental constitutional guarantees of due process and equal protection of the laws. To say that one may kill some human beings--those who have been born--and be held responsible under the law, and that one may kill other human beings--those who have not yet been born--and go free, is a denial of equal protection of the laws and ought not to be condoned by any court. A plain reading of the Michigan wrongful death act ² makes clear that its primary purpose was to make wrongdoers liable for damages when they killed a 'person' through negligence, or negligently inflicted injuries which resulted in death. But such a statute, in order to be constitutional, must apply with equal force...