Wendt v. Lillo

• Decision Date: 04 April 1960
• Docket Number: Civ. No. 678.
• Citation: 182 F. Supp. 56
• Parties: Marjorie WENDT, Dale Wendt, Individually, and Dale Wendt, as Administrator of the Estate of Neil Wendt, Deceased, Plaintiffs, v. Carl F. LILLO and Stenson Bros., Inc., Defendants.
• Court: U.S. District Court — Northern District of Iowa

182 F. Supp. 56

Marjorie WENDT, Dale Wendt, Individually, and Dale Wendt, as Administrator of the Estate of Neil Wendt, Deceased, Plaintiffs, v. Carl F. LILLO and Stenson Bros., Inc., Defendants.

Civ. No. 678.

United States District Court N. D. Iowa, Cedar Rapids Division.

April 4, 1960.

Wayne C. Collins, Charles A. Hastings (of Elliott, Shuttleworth & Ingersoll), Cedar Rapids, Iowa, for plaintiffs.

E. H. Wadsworth (of Barnes, Wadsworth, Elderkin, Locher & Pirnie), Cedar Rapids, Iowa, for defendants.

GRAVEN, District Judge.

On July 17, 1958, in Linn County, Iowa, a collision occurred between a motor vehicle owned by the defendant Stenson Bros., Inc., and operated by Carl F. Lillo, one of its employees, and a motor vehicle owned by the plaintiff Dale Wendt and operated by his wife, the plaintiff Marjorie Wendt. The plaintiffs Dale Wendt and Marjorie Wendt are residents of Delaware County, Iowa, and are citizens of the State of Iowa. The defendant Carl F. Lillo is a citizen of the State of Minnesota. The defendant Stenson Bros., Inc., is a corporation duly organized and existing under the laws of the State of Minnesota. In February, 1960, the plaintiffs above named instituted an action against the defendants in the District Court of Iowa in and for Linn County. That action was removed to this Court.

The complaint is in three counts. In Counts I and II the plaintiffs Marjorie Wendt and Dale Wendt seek to recover the damages alleged to have been sustained by them as a result of that collision. The defendants have made answer to those counts. In Count III Dale Wendt, as administrator of the estate of Neil Wendt, seeks to recover for the death of that decedent. In that count it is alleged that at the time of the collision Neil Wendt, a viable infant, was a passenger in the Wendt motor vehicle and that personal injury received by him in the collision resulted in his death. The defendants have moved to dismiss Count III. That motion is the subject of this opinion. The ground of the motion is that under the applicable law an action may not be maintained for the death of an unborn child. The three counts constitute three separate claims. Under the usual procedure in this District, the three claims if proceeded on by separate actions would have been consolidated for trial. Therefore, the grouping of the three claims in one action is not of substantive significance. For convenience in reference, Dale Wendt, as administrator of the estate of Neil Wendt, will be referred to as the plaintiff.

Count III allegedly has to do with a viable infant. In the case of West v. McCoy, 1958, 233 S.C. 369, 105 S.E.2d 88, the Supreme Court of South Carolina stated (at pages 90-91 of 105 S.E.2d):

"There is a medical distinction between the term `embryo' and the phrase `viable fetus'. The embryo is the fetus in the earliest stage of development but the expression `viable fetus' means the child has reached a stage of development where it can live outside the female body as well as within it. A fetus generally becomes a viable child between the sixth and seventh month of its existence. * * *"

In Prosser, Law of Torts, p. 175, footnote 78 (2d Ed. 1955), it is stated that viability is a relative matter depending on many other factors as well as the age of the fetus. For the purposes of this motion it is assumed that the unborn child, Neil Wendt, had reached the stage of viability. There is a further stage of development, designated as the independent circulation stage; i. e., where the child's blood circulation becomes independent of its mother's blood circulation. State v. Winthrop, 1876, 43 Iowa 519, 22 Am.Rep. 257.

In the present case jurisdiction is based upon diversity of citizenship, and the Iowa law is applicable. Erie Railroad Company v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. It appears that the Iowa Supreme Court has never directly passed on the question here presented. It further appears that the courts in other jurisdictions are in sharp disagreement on the question. The subject of prenatal injury as ground for an action has been extensively dealt with in the annotations to the cases of Woods v. Lancet, 1951, 303 N.Y. 349, 102 N.E.2d 691, 27 A.L.R.2d 1250; Williams v. Marion Rapid Transit, Inc., 1949, 152 Ohio St. 114, 87 N.E.2d 334, 10 A.L.R.2d 1051; Verkennes v. Corniea, 1949, 229 Minn. 365, 38 N.W.2d 838, 10 A.L.R.2d 634. There is an exhaustive comment on Rights of Action For Prenatal Injuries in 3 Drake Law Review 72 (1954), supplemented in 6 Drake Law Review 55 (1958). The subject is noted in 3 Iowa L.Bull. 128 (1917).

The subject of prenatal injuries encompasses a number of situations. The mother may be involved in a negligently caused mishap while the fetus is in the embryo stage. Such a mishap may occur while the fetus is in the viable stage. Such mishap may have different consequences. The viable infant may be born and live but be deformed. The viable infant may be born alive and then die. The viable infant may be born dead. Apparently such was the situation in the present case.

The Iowa cases cited by the parties as being relevant will be first considered. In the case of Rowland v. Rowland, 1853, 4 G. Greene 183, a posthumous child was born to the widow of a man who had died intestate. The child lived for four or five months after its birth. It was held that the child inherited from his father. Thus, the child was, to a certain extent, regarded as in being at the time of his father's death.

In the case of State v. Winthrop, 1876, 43 Iowa 519, 22 Am.Rep. 257, a physician who attended a woman in childbirth was charged with producing the death of the child and was convicted of manslaughter. The conviction was reversed. The Iowa Court held that in order for the defendant to be guilty of homicide it was necessary for the State to establish that the infant had an independent circulation. The decision of the Iowa Court on the particular point is in accord with the decisions of other courts in similar cases. See cases cited in 3 Drake Law Review 72, 79 (1954).

In the case of Kansz v. Ryan, 1879, 51 Iowa 232, 1 N.W. 485, the plaintiff sought to recover damages against a physician who, among other things, was charged with having produced a miscarriage to the former's wife. A demurrer to the plaintiff's petition was sustained by the trial court. On appeal that ruling was affirmed. The Court stated (at page 487 of 1 N.W.):

"The second count claims to recover on the ground that plaintiff was deprived of offspring by defendant's acts. Regarding, for the purpose of this case, the rights of the father as to an infant in ventre sa mere to be the same as though the offspring were in life—a point that we do not determine—he cannot recover for injury to such offspring, except for the loss of service resulting therefrom. Addison on Torts, p. 907. Plaintiff does not, and cannot, claim for loss of services of an unborn child. Whether he could have claimed for future services to be rendered, after the birth of the child, we need not consider, for no such claim is found in the petition. We may suggest that such a claim for damages would be based upon very remote and uncertain consequences of the act complained of; it is hardly probable that it would be allowed by the law. * * *."

The defendants cite the case of Elmore v. Des Moines City Ry. Co., 1929, 207 Iowa 862, 224 N.W. 28, in support of their position. In that case the plaintiff, a married woman, brought an action for personal injuries alleged to have been caused to her while a passenger on a public bus by reason of the negligence of the driver thereof. In her action she included a claim for damages for miscarriage resulting in her child's being born one month premature. The child was obviously viable at the time of the miscarriage. The jury's award of $10,000, which apparently included damages for the miscarriage, was affirmed on appeal. The case is not helpful because the Iowa Court in its opinion did not discuss the propriety of the award to the mother because of the premature birth of the child. It has generally been recognized that a pregnant woman who has sustained personal injury resulting in a miscarriage may be awarded damages for physical and mental suffering and physical impairment occasioned by the miscarriage. 15 Am.Jur., Damages, Sec. 82, p. 490.

The case of Wehrman v. Farmers' & Merchants' Sav. Bank of Durant, 1935, 221 Iowa 249, 259 N.W. 564, 266 N.W. 290, involved the Iowa anti-lapse statute. In that case the decedent's daughter died during a Caesarean operation in which twins were removed. The attending physicians and nurses were unable to state whether the twins were born dead or alive, but did state they were dead twenty minutes after birth. If the twins were born alive, certain property would go to the son-in-law; if born dead, that property would go to collateral relatives. The Iowa Court held that the burden was upon the collateral relatives to establish that the twins were born dead and that they had failed to so establish. In its opinion in that case the Iowa Court stated (at page 569 of 259 N.W.):

"The functioning, or beating, of the heart of an infant, after delivery, establishing an independent circulation of the blood, has been approved by this court as the criterion by which is determined whether the infant ever acquired existence as an individual being. State v. Winthrop, 43 Iowa 519, 22 Am.Rep. 257. * * *"

It is the claim of the plaintiff that the statement just set out constitutes dictum. It would seem that the statement could be regarded at least as "considered" dictum. That matter will be later referred to.

It is the claim of the plaintiff that Section 611.20, Code of Iowa 1958, I.C.A., gives support to his position. That section is as follows:

"Actions survive. All causes of action shall survive and may be brought notwithstanding the death of the person entitled or liable to the same."

That statute...