Toth v. Goree

• Decision Date: 28 October 1975
• Docket Number: Docket No. 21827
• Citation: 237 N.W.2d 297,65 Mich.App. 296
• Parties: Kenneth TOTH, Special Administrator of the Estate of Baby Liggens, Deceased, Plaintiff-Appellant, v. Willie GOREE, Defendant-Appellee. 65 Mich.App. 296, 237 N.W.2d 297
• Court: Court of Appeal of Michigan — District of US

Page 297

237 N.W.2d 297

Kenneth TOTH, Special Administrator of the Estate of Baby Liggens, Deceased, Plaintiff-Appellant, v. Willie GOREE, Defendant-Appellee.

Docket No. 21827.

65 Mich.App. 296, 237 N.W.2d 297

Court of Appeals of Michigan.

Oct. 28, 1975.

Released for Publication Jan. 23, 1976.

[65 MICHAPP 297] Barbara, Wisok, Tavoularis, Ruby & Domol by Peter R. Barbara, Detroit, for plaintiff-appellant.

William D. Eggenberger, Detroit, for defendant-appellee.

Before DANHOF, P.J., and R. B. BURNS and MAHER, JJ.

DANHOF, Presiding Judge.

This cause of action arises out of an automobile accident which occurred on November 1, 1970. As a result of this accident, Betty Liggens allegedly suffered a miscarriage. The fetus was not 'viable'. Prior to the trial of this action, defendant brought a motion for summary judgment pursuant to GCR 1963, 117 on the basis that this action was not maintainable as Baby Liggens was not medically viable. On September 24, 1974, the Honorable James N. Canham entered an order granting defendant's motion for summary judgment. Plaintiff appeals from this order. There was no written opinion. ¹

The decedent was a three-month-old infant En ventre sa mere. ²

The only issue presented in this case is whether a three-month-old infant En ventre sa mere, not [65 MICHAPP 298] born alive, is a 'person' within the wrongful death act. M.C.L.A. § 600.2922; M.S.A. § 27A.2922.

The word Person has not previously been interpreted this broadly under this act in Michigan.

M.C.L.A. § 600.2922(1); M.S.A. § 27A.2922(1) reads as follows '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 be brought only under this section.'

Even though the wrongful death act is for the benefit of certain persons, the cause of action is a derivative one whereby the personal representative of the deceased stands in the latter's shoes. Maiuri v. Sinacola Construction Co., 382 Mich. 391, 395--396, 170 N.W.2d 27 (1969). The suit is brought on behalf of the deceased. The cause of action belongs to the deceased. When an action is brought under the wrongful death act for the death of a fetus, the rights alleged are those of the fetus. It is not a suit for injuries to the mother, either physical or mental, accompanying or resulting from the loss of the fetus. Therefore, the case law discussed will relate to the right of the infant to recover for prenatal injuries.

Womack v. Buchhorn, 384 Mich. 718, 721--722, 187 N.W.2d 218 (1971), stated that 27 American [65 MICHAPP 299] jurisdictions allowed recovery for prenatal injury. An examination of those jurisdictions indicated that in each case where recovery was allowed the fetus was either viable ³ or survived birth for at least a short time. Libbee v. Permanente Clinic, 268 Or. 258, 518 P.2d 636, 638 (1974), provides an even more relevant survey of the various jurisdictions. Libbee stated that 19 jurisdictions expressly allowed recovery for the death of a viable unborn infant, while 12 jurisdictions expressly prohibit recovery. The cases reviewed in the Annotation, Liability for Prenatal Injuries, 40 A.L.R.3d 1222, limit recovery for death or injury to either a viable fetus or a child injured before birth but born alive. ⁴

None of the cases allowed recovery for the death of a three-month-old nonviable fetus that was not born alive. However, several jurisdictions did expressly prohibit recovery for the death of a nonviable fetus that was not born alive. ⁵

[65 MICHAPP 300] O'Neill v. Morse, 385 Mich. 130, 188 N.W.2d 785 (1971), has extended the law under Michigan's wrongful death statute to allow an action on behalf of an eight-month-old viable fetus En ventre sa mere.

The discussion by the O'Neill court of prenatal life more aptly describes a viable fetus. The Court stated, Supra, at 135, 188 N.W.2d at 786:

'The instructive dissent of Mr. Justice Boggs, in Allaire v. St. Luke's 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."

The nonviable fetus by definition is deemed not capable of living outside its mother's womb. The court further stated at 137, 188 N.W.2d at 787:

'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.'

While much of the language in O'Neill is ambiguous[65 MICHAPP 301] as regards viability, it does tend to exclude the nonviable fetus from its discussion.

O'Neill v. Morse, supra, at 133, 188 N.W.2d at 785, also discussed the case of Womack v. Buchhorn, supra, in connection with the first section of the wrongful death statute:

'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 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.'

In Womack an action was brought on behalf of an eight-year-old surviving child for prenatal injuries suffered during the fourth month of pregnancy. However, Womack should not be read out of context to give significant legal existence to a nonviable fetus. As was stated in People v. Nixon, 42 Mich.App. 332, 338, n.13, 201 N.W.2d 635, 640 (1972):

'The Womack decision is sometimes mistakenly cited for the proposition that the Court recognized the unborn child's 'right to live'. This is not the case, for as the Court clearly stated: 'The only issue in this case is whether a common-law negligence action can be brought on behalf of a Surviving child negligently injured during the fourth month of pregnancy.' (Emphasis supplied.) Womack, supra, (384 Mich.) 719--720, 187 N.W.2d 219. Thus the Womack decision would appear to be limited to those cases where there is a live birth. If there is a live birth, then [65 MICHAPP 302] an action may be brought in the name of the child for prenatal injuries.'

While Womack does give a cause of action for prenatal injury, that action is not without limits. Those limits are drawn. The infant must have been born alive as in Womack or have been viable as in O'Neill in order to have an action brought in the infant's own behalf, whether as a commonlaw action or as a wrongful death action.

The Womack Court itself failed to point out the key element of survival. The Court attributed the following to a Massachusetts case, Supra, at 722, n.4, 187 N.W.2d at 221:

'MASSACHUSETTS allows an action the subsequent effect on the physician-patient (3 1/2 months), holding that a non-viable fetus is a 'person' within the meaning of the Massachusetts wrongful death act. Torigian v. Watertown News Co., Inc., 352 Mass. 446, 225 N.E.2d 926 (1967).'

However, a later Massachusetts case, Leccese v. McDonough, 361 Mass. 64, 279 N.E.2d 339, 341 (1972), stated in regard to a statute similar to the Michigan wrongful death statute: ⁶

'The requirement that the foetus be born alive, stated expressly in the Keyes case, 340 Mass. 633, 636, 165 N.E.2d 912 (1960) lays down a sensible and easily [65 MICHAPP 303] administered rule under our statute. In recognizing the possibility of recovery under c. 229 § 2 (as amended), for a viable foetus born alive in the Keyes case, and for a foetus nonviable at the date of injury but later born alive (see the Torigian case, 352 Mass. 446, 225 N.E.2d 926 (1967)), we went as far in revising the rule in the Dietrich case, 138 Mass. 14 (1884), as the statutory language reasonably permits. If a foetus is born alive, it becomes a 'person' with at least the theoretical possibility of survival and of enduring the consequences of prenatal injury throughout its life. A foetus not born alive seems to us to incur no such risk of continuing injury and also not to be a 'person' within our interpretation of the legislative intention. If there are to be changes in the bases for recovery in this type of statutory action, we think that they are for legislative rather than judicial determination.' (Footnote omitted.)

Once an infant survives birth and thus becomes a 'person,' the infant would have had a cause of action 'if death had not resulted'.

Moreover, the O'Neill and Womack cases must be read in light of more recent developments in the case law. Roe v. Wade, 410 U.S. 113, 93...