Wolfe v. Isbell

• Decision Date: 12 July 1973
• Citation: 280 So.2d 758,291 Ala. 327
• Parties: Charles A. WOLFE, who sues as father of Deceased Polly Jane Wolfe v. Linda Sue ISBELL et al. SC 200.
• Court: Alabama Supreme Court

Page 758

280 So.2d 758

291 Ala. 327

Charles A. WOLFE, who sues as father of Deceased Polly Jane Wolfe v. Linda Sue ISBELL et al.

SC 200.

Supreme Court of Alabama.

July 12, 1973.

Roscoe B. Hogan, Birmingham, for appellant.

Rives, Peterson, Pettus, Conway & Burge, Birmingham, for appellees.

McCALL, Justice.

The defendants appellees have moved this court to strike appellant's brief or for affirmance of the case or for dismissal of the appeal. They assign as grounds that the brief of the appellant contains no Statement of the Case as required by Supreme Court Rule 9 and that the Statement of Facts is merely argument and does not specifically refer to any one ground of demurrer as being erroneously sustained.

This appeal is taken because of the adverse ruling on a demurrer to the complaint. While we cannot approve of the omissions made in the brief, the sole issue is so clearly formulated, we have no difficulty in readily understanding the point involved from the brief. This court has properly held that it will give a liberal application to its Rules and will condone noncompliance when the record is short and simple, and when compliance with the cited rules is not essential with the cited of the argument. Kendall Alabama Company v. City of Fort Payne, 262 Ala. 465, 79 So.2d 801; McMillan v. Fabretta, 231 Ala. 188, 163 So. 793; Brothers v. Brothers, 208 Ala. 258, 94 So. 175; City of Montgomery v. Mott, 266 Ala. 422, 96 So.2d 766. The motion is denied.

In this case the father sues to recover damages for the death of his minor child allegedly caused by the wrongful act, omission, or negligence of the defendants. From an adverse ruling on the defendants' demurrer to the single count complaint, the plaintiff took a nonsuit and now appeals.

We are concerned with the sole question of whether or not a tort action can be maintained by the father to recover damages for the wrongful death of his minor child, resulting from prenatal injuries, negligently inflicted while a nonviable fetus, if the injured child is subsequently born alive. By nonviable we mean not capable of living, growing, or developing and functioning successfully, the antithesis of viable, which is defined as having attained such form and development of organs as to be normally capable of living outside the uterus. See Webster's Third New International Dictionary. At the outset all must realize that possessing a good cause of action and pleading it is one consideration, while the problem of proof of the allegations is an entirely separate and distinct consideration. Here, only the former consideration invokes our attention.

The gravamen of the plaintiff's complaint is that, on to-wit, March 10, 1970, the defendants so negligently operated a truck as to negligently cause or negligently allow it to back into or collide with an automobile, on a public street in Pell City, Alabama, in which the plaintiff's wife was seated, she being then pregnant with the plaintiff's unborn child, and as a proximate consequence thereof, the said minor child, being then carried as an unborn child by his wife, suffered grievous prenatal injuries and prenatal damages from which she subsequently died on to-wit, June 16, 1970, approximately fifty minutes after being born alive on said date and occasion.

There are fifteen grounds of demurrer assigned, separately and severally, by the defendants to this court. The gist of the grounds of demurrer is that it affirmatively appears from the averments of the count or complaint that the plaintiff's unborn child was not a minor child at the time of the alleged negligence so as to give the plaintiff a cause of action on account of the alleged injuries negligently inflicted upon her, resulting in her death after being born alive.

While we approached the question here involved in Huskey v. Smith, 289 Ala. 52, 265 So.2d 596, a decision of the issue was never reached because there we were dealing with a viable child. But in Huskey, we overruled our former case of Stanford v. St. Louis-San Francisco Ry. Co., 214 Ala. 611, 108 So. 566 (1926), which stood as authority for the proposition that a prenatal injury afforded no basis for an action in damages in favor either of the child or its personal representative, and we recognized the right to recover for the wrongful death of a viable child because it existed separate and apart from the mother, but within her body. Furthermore, we said: '(T)o give further force to Stanford would give protection to an alleged tort-feasor.' We had previously held in Stanford, supra, that a fetal child was a part of the mother and was not a 'person' until it was born. See also Dietrich v. Northhampton, 138 Mass. 14, 52 Am.Rep. 242, and Allaire v. St. Luke's Hospital, 184 Ill. 359, 56 N.E. 638, both of which have essentially been overruled. We said in Huskey, supra, that this holding in Stanford was based upon an incorrect statement of medical fact. We held in Huskey that where the mother was seven and one-half months pregnant, and five days after the accidental injury, the child was born alive, but died five days after brith, it was error to deny a parent or legal representative the right to proceed in a wrongful death action. Thus the theory of the right to recover in Huskey was that the child was not a part of the mother contra to Stanford. We left undecided the question of whether a previable child, who was subsequently born alive, was a part of the mother. In a footnote to Huskey, we also pointed out that it was not necessary to decide in that cause whether an action for personal injury or wrongful death would exist, if inflicted before the fetus became viable.

The defendants differentiate the instant case from that of Huskey, where there was a viable fetus, on the ground that here, construing the complaint more strongly against the pleader, we are to assume, for testing the complaint only, a negligent injury to a nonviable fetus for which the defnednats contend that there can be no recovery for damages by the father on account of wrongful death, although the child is born alive. Thus the defendants contend that the right of action for prenatal injuries, if any, is limited to children, born alive, who, at the time of the injury, were alive and capable of being delivered and of remaining alive separate from their mothers. Apparently the defendants' defense is that they owed no duty to the nonviable fetus as a minor child under the statute, Tit. 7, § 119, Code of Alabama, 1940. On this subject, Prosser in his Law of Torts, 4th Ed., p. 336, says: 'So far as duty is concerned, if existence at the time is necessary, medical authority has recognized long since that the child is in existence from the moment of conception, and for many purposes its existence is recognized by the law.' Citing Herzog, Medical Jurisprudence, 1931, §§ 860--975; Malloy, Legal Anatomy and Surgery, 1930, 669--687. And Prosser adds: 'All writers who have discussed the problem have joined in condemning the old rule (that the defendant could owe no duty of conduct to a person who was not in existence at the time of the action), in maintaining that the unborn child in the path of an automobile is as much a person in the street as the mother, and in urging that recovery should be allowed upon proper proof.'

Generally speaking, it is essential to the maintenance of an action for death by wrongful act or default that the act or default be of such character as would have supported an action by the deceased for his injuries if he had survived. If the deceased never had a cause of action, none accrues under a wrongful death statute. Owens v. Auto Mutual Indemnity Co., 235 Ala. 9, 177 So. 133; Harris v. A. J. Spencer Lumber Co., 185 Ala. 648, 64 So. 557; Lovell v. DeBardelaben Coal and Iron Co., 90 Ala. 13, 7 So. 756. On this point it is stated in Harris v. McNamara, 97 Ala. 181, 183, 12 So. 103, 104, as follows:

'* * * Nor does it matter that the parent sues, instead of the injured party in case of injury merely, or the personal representative in case of death. The basis of the action is the wrong done the injured party, and the right to redress that wrong which the statute confers upon the parent in case of death, is not more enlarged than that which would belong to the deceased himself if death had not resulted, and he were suing for the personal injury. * * *'

It follows that the right to maintain an action for the wrongful death of an unborn child depends on the right of the particular child, if he had survived, to maintain an action for injuries sustained.

The plaintiff's position is that it makes no difference, in deciding the right to a cause of action for wrongful death, whether the fetal child was viable or not when the injury was inflicted, if the child was subsequently born alive but died from the injury. Under the pleadings it appears that, whether viable or nonviable, had it not been for the wrongful prenatal injury, the fetal child would have sustained life. The fact appears from the complaint that the child was born alive and shortly thereafter died because of the prenatal injury. In other words, under the allegations of the complaint, life would have been sustained but for the negligence of the defendants that proximately caused the injury from which the child subsequently died after being born alive.

While the decisions dealing with the problem before us are certainly not without divergent views, the more recent authorities emphasize that there is no valid medical basis for a distinction based on viability, especially where the child has been born alive. These proceed on the premise that the fetus is just as much an independent being prior to viability as it is afterwards, and that from the moment of conception, the fetus or embryo is not a part of the mother, but rather has a separate existence within the body of the mother.

Though unnecessary to a decision in Puhl v. Milwaukee Auto Ins. Co., 8 Wis.2d 343, 99...