Norman v. Murphy

• Decision Date: 23 March 1954
• Citation: 124 Cal.App.2d 95,268 P.2d 178
• Parties: NORMAN et al. v. MURPHY et al. Civ. 8303.
• Court: California Court of Appeals Court of Appeals

Page 178

268 P.2d 178

124 Cal.App.2d 95

NORMAN et al. v. MURPHY et al.

Civ. 8303.

District Court of Appeal, Third District, California.

March 23, 1954.

Robert F. Appel, Crescent City, for appellants.

William W. Speer & Lloyd M. Creasey, Crescent City, for respondents.

PAULSEN, Justice pro tem.

Appellants, husband and wife, brought this action to recover damages for personal injuries received by them in an automobile accident and also, by their fourth cause of action, to recover damages for the death of an unborn child, resulting from the same accident. In said cause of action it was alleged that plaintiffs 'were husband and wife, the natural parents and heirs of unnamed Baby Norman, deceased'; that at the time of the accident he was a 'healthy, unborn baby, having been carried within its mother for a period of more than four and one-half (4 1/2) months'; that in the accident the mother was so injured 'as to cause her to have a miscarriage and' to cause 'the death of said unborn, unnamed Baby Norman.' Damages were claimed for burial expenses for the child and for deprivation of its anticipated services, assistance, companionship, love, affection and support.

The court sustained a demurrer to said fourth cause of action without leave to amend and this appeal is from the judgment of dismissal that followed.

The questions presented here have never been directly decided by the courts of this state and appellants admit that the weight of authority supports the ruling of the trial court. They argue, however, that logic and the trend of modern decisions elsewhere demand an interpretation of California law that would permit such an action.

The pertinent parts of section 377 of the Code of Civil Procedure upon which the action is based read as follows:

'When the death of a person not being a minor, or when the death of a minor person who leaves surviving him either a husband or wife or child or children or father or mother, is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death, * * *.'

An action for damages for wrongful death was unknown at common law, and being wholly statutory in origin the action must stand or fall by the terms of the statute under which recovery is sought. Fuentes v. Tucker, 31 Cal.2d 1, 187 P.2d 752; Davis v. Southern Arizona Freight Lines, Ltd., 30 Cal.App.2d 48, 85 P.2d 897; Evans v. Shanklin, 16 Cal.App.2d 358, 60 P.2d 554; 25 C.J.S., Death, §§ 13, 14.

It is at once apparent from an examination of section 377 that no cause of action for the death of an unborn child was thereby created unless such child is deemed to be a 'minor person,' and there is nothing in our statutes that indicates an intention to make it such. Considered in its context, it is clear that the phrase 'a person not being a minor' was intended to designate an adult.

Except for certain purposes with which we are not presently concerned, minors are persons under 21 years of age. Civ.Code, § 25. 'The periods specified in the preceding section must be calculated from the first minute of the day on which persons are born to the same minute of the corresponding day completing the period of minority.' Civ.Code, § 26. While this definition of minority does not preclude the idea that an unborn child may, for certain purposes, be considered 'a person,' it points most persuasively to the conclusion that it can not be considered 'a minor person.' This conclusion is further fortified by the provision of section 29 of the Civil Code that 'A child conceived, but not yet born, is to be deemed an existing person, so far as may be necessary for its interests in the event of its subsequent birth * * *.' (Italics supplied.) As pointed out by this court in Scott v. McPheeters, 33 Cal.App.2d 629, 92 P.2d 678, 93 P.2d 562, section 29 was adopted to create a cause of action for the benefit of the child, and to protect its interests in the event of its subsequent birth. Under the common law the child had no right to recover damages for prenatal injuries and its parents had no right to recover damages for its death either before or after birth.

While section 29 of the Civil Code created a new cause of action for the benefit of a child, section 377 of the Code of Civil Procedure created a new cause of action for the benefit of the heirs of 'a person not being a minor,' or of a 'minor person.' Speaking of section 377, it is said in Secrest v. Pacific Electric Ry. Co., 60 Cal.App.2d 746, 141 P.2d 747, 748: 'It is a new action--that is, one that had not previously obtained under the common law--and not a continuation or revival of an old action or one that subsisted prior to the death. It is founded upon the injury causing death as it affects the heirs and personal representatives and not as it affects the decedent individually.'

The legislature again recognized the rules of the common law and made provision for the protection of the rights of unborn children by an amendment to section 270 of the Penal Code.

Considering the status of an unborn child in the field of criminal law, we find that prior to 1925 section 270 read in part as follows:

'A father of either a legitimate or...