Powers' Estate v. City of Troy

• Decision Date: 04 March 1968
• Docket Number: No. 7,7
• Citation: 156 N.W.2d 530,380 Mich. 160
• 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.
• Court: Michigan Supreme Court

Page 530

156 N.W.2d 530

380 Mich. 160

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.

No. 7.

Supreme Court of Michigan.

March 4, 1968.

Cicinelli, Mossner, Majoros, Harrigan & Alexander, Saginaw (Peter F. Cicinelli and Eugene D. Mossner, Saginaw of counsel), for plaintiff-appellant.

Patterson & Patterson, Barrett, Whitfield, Manikoff & White, Pontiac (Gerald G. White and Robert G. Waddell, Pontiac, of counsel), for defendants and appellees.

Before the Entire Bench.

O'HARA, Justice.

This case involves an interpretation of the Michigan wrongful death act. ¹ Specifically, the question is the meaning of the word 'person' in the first sentence of the statute:

'Whenever the death of a Person or injuries resulting in death shall be caused by wrongful act * * * 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.' (Emphasis supplied.)

In this case the Person said to be involved was a 6-month-old male child En ventre sa mere. The child was stillborn. The question of the wrongful act as the proximate cause of the stillbirth is not in issue. The sole question posed by appellant and accepted by appellee is:

'Is an unborn child which is negligently injured by defendant and subsequently stillborn a 'person' within the meaning of Michigan's wrongful death act?'

We make clear at the outset that we are not here considering the theological, nor philosophical status of a fetal child in the context of laws relating to abortion. We confine ourselves strictly to the meaning of a 'person' within the wrongful death act. The assigned Justice, and any Justice signatory hereto, expressly limit the views they here express to the interpretation of the statute which is the subject of judicial construction.

The probate court for Oakland county appointed an administratrix for the estate of the stillborn child. By that administratrix a suit was started in the circuit court for the same county under the wrongful death act. Defendant prior to answer moved for summary judgment. The trial judge held:

'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.'

The Court of Appeals affirmed. Its holding was:

'Therefore, while we find authority for the proposition of the appellant, we are bound by the holding in Newman ² supra, the intent of the legislature under the Michigan wrongful death act, and the clear meaning of the term 'person' as used therein.' 4 Mich.App. 572, 577, 145 N.W.2d 418, 421.

We granted leave. Appellant urges 2 principal arguments. First, it is claimed that Newman was by implication, if not explicitly, overruled by LaBlue v. Specker (1960), 358 Mich. 558, 100 N.W.2d 445. Second, if Newman has not been overruled by LaBlue, we should do so now. In support of the second argument appellant contends that the Ratio decidendi of Newman is no longer valid. Newman, it is argued, was based upon the 'overwhelming weight of authority' concept, while in the interim, since 1937, many jurisdictions have changed positions. In further support of the second argument, appellant relies on the 'enlightened view' concept as part of the 'no wrong without a remedy' proposition. ³

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. The argument is advanced that the construction asked by appellant is no part of a growth of the common law so vital to its continuing efficacy, but rather that our death act is a lineal descendant of Lord Campbell's act and is in derogation of the common law. That it is the statute which gives the cause of action and that the courts are not privileged to create a new cause of action under the guise of liberal interpretation. Additional argument is made to the point that authorities not only divide on the issue here presented, but subdivide on the difference between the right of a viable fetus negligently injured during gestation but born alive, and one stillborn.

We address ourselves first to the contention that LaBlue, supra, overruled Newman. We do not so read LaBlue. First, LaBlue was not an action asserted under the wrongful death act. The action was based on the so-called 'dram shop' act ⁴ by reason of an alleged illegal sale of liquor to a minor. That minor, prior to his death, had allegedly acknowledged he was the father of a child to be born to an unwed female to whom he was engaged. Conception was alleged to have taken place in June of 1956. The minor father was killed on August 19, 1956. The declaration of paternity must then have been made between those 2 dates. The child was born on March 8, 1957. It was plaintiff's theory that the child lost the support of the self-declared and betrothed father. No injury to the mother during pregnancy occurred. The fetal child in the period of gestation was not injured in the sense of the injury to the fetal child in this case. LaBlue is closer to the family of cases recognizing a posthumous child as a dependent for inheritance purposes. Under the dram shop act loss of support is the essence of the action. Under the death act it is a wrongful death of a person which is the Sine qua non. We reject the contention that LaBlue overruled Newman either expressly or by implication.

Next, we consider the 'public policy' argument. We do not express ourselves upon it, nor upon the 'marjority view' argument. Neither do we distinguish between assertibility of a cause of action based on injury to a child in Utero which has survived birth and later dies and one which is stillborn. 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. Such has been and remains a cardinal principle of statutory construction to ascertain legislative intent:

'In construing a statute, we are to construe it in the light of the circumstances existing at the date of its enactment, not in the light of subsequent developments.' Wayne County Board of Road Commissioners v. Wayne County Clerk, 293 Mich. 229, p. 235, 291 N.W. 879, p. 881.

See, also, 25 RCL Statutes, § 215, p. 959, which in turn was fortified by Platt v. Union P.R. Co. (1879), 99 U.S. 48, 25 L.Ed. 424; 50 Am.Jur., Statutes, § 236, p. 224.

This has been the uniform policy of this Court beginning with Green v. Graves (1844), 1 Doug. 351, where the Court said at p. 354:

'The words of a statute are to be taken in their ordinary signification and import.'

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.

We are constrained to agree with the reasoning of the Supreme Court of Tennessee in Hogan v. McDaniel (1958), 204 Tenn. 235, 319 S.W.2d 221. In considering the same question, under a statute substantially the same as ours, the Court said (pp. 244, 245, 319 S.W.2d p. 225):

'There is no ambiguity in our Wrongful Death Statute. We must consider it as it is written, not as we would have it. Only the Legislature has authority to create legal rights and interests. It results that no right of action, such as plaintiffs seek to assert, can be brought until there is legislative authority for it.'

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.

The order of the Court of Appeals affirming the entry of summary judgment for defendants is affirmed. Costs to the defendants.

DETHMERS, C.J., and KELLY and ADAMS, JJ., concurred with O'HARA, J.

BRENNAN, Justice. (for affirmance).

This case of Powers is the Reductio ad absurdum of Wycko v. Gnodtke, 361 Mich. 331, 105 N.W.2d 118. Having erroneously ruled in Wycko that a human being, like a horse or a mule, has a value to be measured in greenback dollars, this Court is now confronted with an extreme case of a very short-lived human being. As in most cases, when an erroneous premise is reduced to its most absurd extreme, our Court would now avoid confessing the error of Wycko by changing the subject.

We would now compound our error by holding against the great weight of American jurisprudential authority that a prenatal injury is no injury at all because the plaintiff didn't exist at the time it happened. By such illogical reasoning, we will some day say to a man, horribly scarred or deformed through the malpractice of the obstetrician who delivered him into the light of day, that the scar on his forehead is, by the cruelest legal fiction, an injury to his mother.

In an effort to avoid facing up to our recent errors in Wycko, Currie ¹, Heider ², Reisig ³, we flirt with branding the unreasoned opinion in Newman v. City of Detroit ⁴ as an established and binding precedent, while at the same time overruling the well-reasoned opinion in Tunnicliffe v. Bay Cities Consolidated Railway Co. ⁵

Newman v. City of Detroit held, without much explanation, that there is no action at common law or by statute for the recovery of damages for prenatal injuries. Newman...