Powers' Estate v. City of Troy

• Decision Date: 25 October 1966
• Docket Number: No. 2,No. 970,970,2
• Citation: 4 Mich.App. 572,145 N.W.2d 418
• Parties: In the ESTATE of Baby Boy POWERS, Deceased, by Hazel L. Powers, Administratrix, Plaintiff-Appellant, v. The CITY OF TROY, a Michigan corporation and Alex Ventittelli, jointly and severally, Defendants-Appellees. Cal
• Court: Court of Appeal of Michigan — District of US

Page 418

145 N.W.2d 418

4 Mich.App. 572

In the ESTATE of Baby Boy POWERS, Deceased, by Hazel L Powers, Administratrix, Plaintiff-Appellant, v. The CITY OF TROY, a Michigan corporation and Alex Ventittelli, jointly and severally, Defendants-Appellees.

Cal. No. 970.

Court of Appeals of Michigan, Division No. 2.

Oct. 25, 1966.

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

Edward P. Barrett, Patterson, Patterson & Barrett, Pontiac, for appellees.

Before LESINSKI, C.J., and KAVANAGH and QUINN, JJ.

LESINSKI, Chief Judge.

This case presents to our Court the singularly novel question of whether a child who is negligently injured En ventre sa mere, and is subsequently stillborn is a 'person' within the meaning of our wrongful death act, C.L.1948, § 691.581 et seq. (Stat.Ann.1959 Cum.Supp. § 27.711 et seq.). ¹

The facts viewed most favorably for the plaintiff indicate that on October 29, 1962, Hazel Powers was involved in an automobile accident in Troy, Michigan. At the time of the accident, she was six months pregnant, and as a result of that accident her child, Baby Boy Powers, was stillborn.

Through probate proceedings, Mrs. Powers was appointed administratrix of the child's estate. On August 28, 1964, as administratrix, she filed suit in Oakland county circuit court for damages arising out of the wrongful death of Baby Boy Powers.

The defense filed a motion for summary judgment, as provided by GCR 1963, 117.2(1), alleging that the plaintiff's pleadings failed to state a claim upon which relief could be granted. On April 26, 1965, the trial court granted the defense motion with a finding that 'a viable baby boy in its sixth month of gestation which is negligently injured by a defendant and subsequently stillborn is not a 'person' within the meaning of Michigan's wrongful death act.' This order, entered on June 3, 1965, is the basis of the present appeal.

The question to be resolved in relation to the wrongful death act is whether the deceased herein is a person within the contemplation of the act.

For the Michigan cases on point, we find Newman v. City of Detroit (1937), 281 Mich. 60, 274 N.W. 710, and LaBlue v. Specker (1930), 358 Mich. 558, 100 N.W.2d 445. In Newman, the Court allowed no recovery under the survival act ² for the death of a three-month old infant from an injury sustained 22 days prior to birth. The Court stated 281 Mich. at p. 64, 274 N.W. at p. 711 as its conclusion that:

'Plaintiff has no cause of action under the common law or under any statute.'

We are constrained by Stare decisis to adhere to this view.

The question in LaBlue was whether a child unborn at the time her father died could collect for the loss of his support due to his death under the dram shop act. ³ The holding of the Court after an exhaustive review was that:

'Applying the present condition of the law to the instant case, we hold that the plaintiff's ward was a 'child' or 'other person' within the meaning of CLS 1956, § 436.22 (Stat Ann 1957 Rev. § 18.993), even though she may not have reached the status of viable fetus at the time of the death of her father.'

The LaBlue Case, in holding that the language of the dram shop act can be read broadly enough to mean that a fetus was a 'child' or other 'person,' cannot be considered as authority for the proposition that a fetus is also a 'person' under the wrongful death act.

The relevant substantive section of the statute in question reads as follows: (C.L.1948, § 691.581, supra.)

'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 death 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 hereafter be brought Only under this act.' (Emphasis supplied.)

Except for the two Michigan cases enumerated above, we find no other authority in our state relating to the issue at bar. However, there is outstate authority for appellant's position.

In Fowler v. Woodward (1964), 244 S.C. 608, 138 S.E.2d 42, we find a case similar to the case at bar. In Fowler, the administrator of the estate of baby child Fowler brought an action for wrongful death of an unborn viable infant, under the South Carolina wrongful death statute. The child in Fowler, while in the eighth month of gestation, perished with its mother in an automobile accident. The court held that such a child, being viable, was a person within the contemplation of their wrongful death statute.

Another case wherein the facts are parallel is State, Use of Odham v. Sherman (1964), 234 Md. 179, 198 A.2d 71. Here also there was a viable child of nine months gestation stillborn as a result of the negligence of the defendant. The Court held that the action survived under the Maryland Lord Campbell's Act.

In Todd v. Sandidge Construction Co. (CCA 4, 1964) 341 F.2d 75, the Court, commenting on the arbitrary nature of requiring a child to be born alive for recovery for prenatal injuries, stated: (pp. 76--77)

'To balance the right of action upon whether the child, fatally injured by the negligence of another, is born dead or alive seems not only an artificial demarcation but unjust as well. To illustrate, if the trauma is severe enough to kill the child, then...