O'Neill v. Morse, 16

CourtSupreme Court of Michigan
Citation188 N.W.2d 785,385 Mich. 130
Docket NumberNo. 16,16
PartiesJames 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.
Decision Date07 July 1971

Cicinelli, Mossner, Majoros, Harrigan & Alexander, by Eugene D. Mossner, Saginaw, for plaintiff-appellant.

Smith & Brooker, P.C., by Webster Cook, Mona C. Doyle, Saginaw, for defendant-appellee, Gary R. Root.

Hilman, Purcell, Tunison & Cline, by Donald E. Cline, Saginaw, for defendants-appellees, Eldon Morse and Bernice Morse.

Before the Entire Bench.

BRENNAN, Justice.

The case before us is indistinguishable upon its facts from the case of Powers Estate v. City of Troy, 380 Mich. 160, 156 N.W.2d 530 (1968).

The complaint here alleges that plaintiff's decedent, Baby Boy Pinet, was an 8-month-old viable infant En ventre sa mere at the time of the injury which caused his death.

Action was brought under Michigan's wrongful death statute. M.C.L.A. § 600.2922 (M.S.A. 27A.2922). By motion for summary judgment, defendants raised the issue of whether the plaintiff's decedent was a person within the meaning of that statute.

Plaintiff answered the motion, contending that his decedent was a person within the meaning of the wrongful death statute, and further arguing that his decedent was a person within the meaning of the Fourteenth Amendment to the United States Constitution; that his right of action may not be denied without depriving him of a vested property right without due process of law.

We lay the constitutional question aside.

Intervening since our decision in Powers is the case of Womack v. Buchhorn, Mich., 187 N.W.2d 218, decided at this term.

In Womack, we overruled Newman v. City of Detroit, 281 Mich. 60, 274 N.W. 710 (1937), and held that a common law action does lie in this State for prenatal injuries.

Womack being the applicable rule of common law tort liability, we have only to apply the wrongful death statute to the facts of this case.

The first section of that statute reads as follows:

'Sec. 2922(1) Whenever the death of a person or injuries resulting in death shall be caused by 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, or the corporation which would have been liable, if had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. All actions for such death, or injuries resulting in death, shall be brought only under this section.' C.L.S.1961, 600.2922 (M.S.A. 27A.2922).

The obvious purpose of the statute, originally enacted as P.A.1848, No. 38, is to provide an action for wrongful death whenever, If death had not ensued, there would have been an action for damages. Womack settled the question of whether, if death had not ensued, Baby Boy Pinet would have had an action for damages.

The statutory wrongful death action is coextensive with the common law right of action for damages.

We have never supposed that the 1848 legislature intended only to provide an action for wrongful death under those circumstances in which there was precedent for recovery of damages in cases reported before 1848. It would be anomalous indeed if we were to have two co-existing bodies of common law tort liability in Michigan--one static and frozen as of 1848 for wrongful death and one living and growing to apply in other cases.

Justices who felt no action should lie for the wrongful death of an unborn person subscribed to the following statements in Powers Estate v. City of Troy, Supra:

'Appellee Per contra premises his argument on the traditional view that to hold a fetal child under our death act to be a 'person' we, in legal effect, judicially amend a statute which has been construed since its enactment over a hundred years ago to exclude the cause of action contended for by appellant. * * *

'Rather we rest our decision squarely upon the fact that at the time our wrongful death act was passed the legislature used the term 'person' in its ordinary, generally accepted meaning at that time. * * *

'We are not convinced that 'person' in its ordinary signification in 1848 when our death act was passed included the concept of a fetal child. It should be noted and emphasized that we deal here, not with a cause of action which existed at common law. We do not face here the question of broadening the base of recovery in an action already recognized at common law. We deal with a statute in derogation of the common law. * * *

'Considering the plain import of the word 'person' at the time of enactment of our statute and its uniform interpretation through the years, we feel obligated to accord to the term its 'ordinary signification' when legislatively employed.'

No citation of authority was provided in Powers to establish the historical accuracy of those conclusions. It is not accurate to assume that our recent explosion of medical knowledge on the subject of prenatal life constituted a complete reversal of previous thinking on the subject.

The instructive dissent of Mr. Justice Boggs, in Allaire v. St. Lukes Hospital, 184 Ill. 359, at 368, 56 N.E. 638, at 640, was written in 1900. His view has been largely adopted in this country.

The majority in that case held:

'That a child before birth is, in fact, a part of the mother, and is only severed from her at birth, cannot, we think, be successfully disputed.'

Justice Boggs wrote: 'Medical science and skill and experience have demonstrated that at a period of gestation in advance of the period of parturition the foetus is capable of independent and separate life, and that though within the body of the mother, it is not merely a part of her body, for her body may die in all of its parts and the child remain alive, and capable of maintaining life, when separated from the dead body of the mother.'

If the mother can die and the fetus live, or the fetus die and the mother live, how can it be said that there is only one life?

If tortious conduct can injure one and not the other, how can it be said that there is not a duty owing to each?

The phenomenon of birth is not the beginning of life; it is merely a change in the form of life. The principle feature of that change is the fact of respiration. But the law does not regard the incidence of respiration as the sole determinative of life. Respiration can be artificially induced or mechanically supplied. Life remains.

That the fetus cannot be seen is hardly the measure of life. That it cannot cry or see or remember--can these things control its right to live?

What of the capacity for 'independent' life?

A baby fully born and conceded by all to be 'alive' is no more able to survive unaided than the infant En ventre sa mere. In fact, the babe in arms is less self-sufficient--more dependent--than his unborn counterpart.

Does he want to eat? He cannot take himself to his mother's breast, or even discover the use of it without her help. He cannot keep himself warm or dry or ward off danger. He lives by the sufferance of others, demanding the means of sustaining his life by the noisy, endearing, obvious fact of his presence.

The demands of the unborn child are no less total, but they are enforced by physical rather than emotional attachments. Ensconced and protected, he takes what he needs without asking. Only the conscious or negligent acts of others can deprive him of sustenance.

The phenomenon of birth is an arbitrary point from which to measure life. True, we reckon age by counting birthdays. The Chinese count from New Years. The choice is arbitrary.

Birth may be natural, where the fetus has commenced the process by chemical changes within himself, and the mother has cooperated; it may be intentional, as in the case of Cesarean section or induced labor; or it may be accidental, as where the child is separated from the mother by trauma.*

One need not be alive in order to be born; as the delivery of stillborn babies demonstrates. Neither is it possible for one to be born alive unless he be living prior to the birth.

A fetus having died within its mother's womb is dead; it will not come alive when separated from her. A fetus living within the mother's womb is a living creature; it will not die when separated from her unless the manner, the time or the circumstances of separation constitute a fatal trauma.

The fact of life is not to be denied.

Neither is the wisdom of the public policy which regards unborn persons as being entitled to the protection of the law.

P.A.1968, No. 292, constitutes a legislative recognition of the Personhood of the unborn:

'600.2045 Guardian ad litem for Unborn persons. (M.S.A. 27A.2045)

'Sec. 2045. (1) If in an action or proceeding, other than in probate court, it appears that a person not in being may become entitled to a property interest, real or personal, legal or equitable, involved in or affected by the action or proceeding, and the interest of the unborn person is not or cannot otherwise properly be represented and protected, the court, upon its own motion, or upon the motion of any party, may appoint a suitable person to appear and act as guardian ad litem of the unborn person. The guardian ad litem is authorized to engage counsel and do whatever is necessary to defend and protect the interest of the unborn person. A judgment or order made after the appointment shall be conclusive upon the unborn person for whom a guardian was appointed.

'(2) The guardian ad litem may be removed by the court which appointed him, without notice, when it appears to the court to be for the best interests of the ward. The guardian ad litem may be allowed reasonable...

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