Womack v. Buchhorn

• Decision Date: 01 June 1971
• Docket Number: No. 10,10
• Citation: 384 Mich. 718,187 N.W.2d 218
• Parties: Cedric C. WOMACK, by his next friend, Ollie Womack, Plaintiff- Appellant, v. Willy BUCHHORN, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 218

187 N.W.2d 218

384 Mich. 718

Cedric C. WOMACK, by his next friend, Ollie Womack, Plaintiff- Appellant, v. Willy BUCHHORN, Defendant-Appellee.

No. 10.

Supreme Court of Michigan.

June 1, 1971.

Calvin Klyman, Detroit, for plaintiff-appellant.

Plunkett, Cooney, Rutt & Peacock, Detroit, by John D. Hayes, Stanley A. Prokop, Detroit, of counsel, for defendant-appellee.

Before the Entire Bench.

WILLIAMS, Justice.

This case involves a common-law negligence action brought on behalf of an eight-year-old surviving child for prenatal brain injuries suffered during the fourth month of pregnancy in an automobile accident. The matter comes to this Court on grant of summary judgment for defendant by the Circuit Court solely on the basis of Newman v. City of Detroit, 281 Mich. 60, 274 N.W. 710 (1937) and leave to appeal to this Court prior to decision by the Court of Appeals.

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.

The Newman case was an action under the survival act (3 Comp.Laws 1929 § 14040--14060) involving a child that survived three months after birth from prenatal injuries suffered 22 days prior to birth when his mother was a passenger on a Detroit streetcar. The trial judge denied a motion to dismiss and the case came before this Court by an appeal in the nature of Certiorari. The decision in Newman was based principally on the fact that 'the overwhelming weight of authority is * * * contrary' to allowing recovery for prenatal injuries (p. 63, 274 N.W. p. 711). ¹ The case concluded 'Plaintiff has no cause of action under the common law or under any statute' (p. 64, 274 N.W. p. 711).

Since Newman has been decided, medical science has probably advanced more in one generation than in the previous one hundred years or more. Legal philosophy and precedent have moved in response to scientific and popular knowledge.

When this Court decided Newman in 1937, there were ten jurisdictions ² other than Michigan denying recovery for prenatal injuries and three ³ allowing it. Today 27 American jurisdictions ⁴ allow recovery. Federal District Courts have upheld recovery in two other jurisdictions ⁵ and there is favorable dictum by the state supreme court in still another jurisdiction. ⁶ Only one ⁷ denies recovery. ⁸

Significantly, seven of the nine jurisdictions relied on by our Court in Newman in 1937 have changed their position. ⁹ This leaves only Alabama and Ireland of those originally cited by this Court still denying recovery. As for Alabama of the 6 cases from other jurisdictions ¹⁰ relied on by the Alabama Court in Stanford (footnote 5), all of which were also relied upon by this Court in Newman, all have now been overruled.

This Court must therefore face forth-rightly whether the law of Newman should continue to stand on the basis of Stare decisis or whether Michigan should recognize what present day science, philosophy and the great weight of the law in this country consider the better and the sound rule. Some 20 years ago the New York Court of Appeals was also faced with the same problem in overruling precedent against allowing recovery for negligent infliction of prenatal injuries. Woods v. Lancet, 303 N.Y. 349, 102 N.E.2d 691 overruling Drobner v. Peters, 232 N.Y. 220, 133 N.E. 567, 20 A.L.R. 1503 (1921) (one of the cases relied on by thie Court in Newman in 1937). There Judge Desmond speaking for the Court said:

'What, then, stands in the way of a reversal here? Surely, as an original proposition, we would, today, be hard put to it to find a sound reason for the old rule. Following Drobner v. Peters, Supra, would call for an affirmance but the chief basis for that holding (lack of precedent) no longer exists. And it is not a very strong reason, anyhow, in a case like this. Of course, rules of law on which men rely in their business dealings should not be changed in the middle of the game, but what has that to do with bringing to justice a tort-feasor who surely has no moral or other right to rely on a decision of the New York Court of Appeals? Negligence law is common law, and the common law has been molded and changed and brought up-to-date in many another case. Our Court said, long ago, that it had not only the right, but the duty to reexamine a question where justice demands it, * * *.' (p. 354, 102 N.E.2d p. 694).

This Court has followed the same legal philosophy. For example, in Bricker v. Green, 313 Mich. 218, 232, 21 N.W.2d 105, 110 (1946), Justice Bushnell speaking for the Court quoted and adopted the following language of the Wisconsin Supreme Court:

"Were it a rule of property, we should certainly apply to it the rule of Stare decisis. But it is not a rule of property. It is a pure judicial decree relating to liability for negligence, and the court would not for a moment give countenance to an argument that a wrongdoer relied upon it. We are, threrefore, at liberty to change the rule in the needs of justice, and to conform to the overwhelming majority rule.' Reither v. Grober, 173 Wis. 493, 181 N.W. 739, 18 A.L.R. 362.'

See also the consideration of the matter by Chief Justice Thomas M. Kavanagh in Parker v. Port Huron Hospital, 361 Mich. 1, 10, 11, 105 N.W.2d 1 (1960).

In the light of the present state of science and the overwhelming weight of judicial authority, this Court now overrules Newman. We hold that an action does lie at common law for negligently inflicted prenatal injury. We adopt the reasoning and result of the New Jersey Supreme Court (which also involved a common law action):

'And regardless of analogies to other areas of the law, justice requires that the principle be recognized that a child has a legal right to begin life with a sound mind and body. If the wrongful conduct of another interferes with that right, and it can be established by competent proof that there is a causal connection between the wrongful interference and the harm suffered by the child when born, damages for such harm should be recoverable by the child.' Smith v. Brennan, 31 N.J. 353, 364, 365, 157 A.2d 497, 503 (1960).

'Candor compels acknowledgment that the decision rendered today is a new ruling.' Griffin v. Illinois, 351 U.S. 12, 25, 76 S.Ct. 585, 593--594, 100 L.Ed. 891 (1956) (concurring opinion of Justice Frankfurter). In the interests of justice and fairness therefore 'we are persuaded to hold that the new rule applies to all pending and future cases, as in Bricker v. Green (1946), 313 Mich. 218, 21 N.W.2d 105.' Daley v. LaCroix, 384 Mich. 4, 14, 179 N.W.2d 390, 396 (1970).

The judgment entered in the Circuit Court is vacated and the cause remanded for future proceedings in conformity with this opinion. The costs of this appeal will abide the final decision of this case.

T. M. KAVANAGH, C.J., and BLACK, ADAMS, SWAINSON, BRENNAN and T. G. KAVANAGH, JJ., concur.

1 Newman cites the following authority: 'In some inferior courts where decisions were reversed in the appellate courts and in Kine v. Zuckerman, 4 Pa.Dist. & Co. R. 227, recover was allowed for prenatal injuries. However, the overwhelming weight of authority is to the contrary. Dietrich v. Northampton, 138 Mass. 14, 52 Am.Rep. 242; Walker v. Great Northern Railway Co., 28 L.R. 69 (Ireland); Allaire v. St. Luke's Hospital, 76 Ill.App. 441, 445, affirmed in 184 Ill. 359, 56 N.E. 638, 48 L.R.A. 225, 75 Am.St.Rep. 176; Gorman v. Budlong, 23 R.I. 169, 49 A. 704, 55 L.R.A. 118, 91 Am.St.Rep. St.Rep. 629; Buel v. United Railways Co., 248 Mo. 126, 154 S.W. 71, 45 L.R.A. (N.S.) 625, Ann.Cas. 1914C, 613; Lipps v. Milwaukee Electric Ry. & Light Co., 164 Wis. 272, 159 N.W. 916, L.R.A. 1917B, 334; Stanford v. St. Louis-San Francisco Railway Co., 214 Ala. 611, 108 So. 566; Nugent v. Brooklyn Heights Railway Co., 154 App.Div. 667, 139 N.Y.S. 367, appeal dismissed in 209 N.Y. 515, 102 N.E. 1107; Drobner v. Peters, 232 N.Y. 220, 133 N.E. 567, 20 A.L.R. 1503; Magnolia Coca Cola Bottling Co. v. Jordan, 124 Tex. 347, 78 S.W.2d 944, 97 A.L.R. 1513)' pp. 63, 64, 274 N.W. p. 711.

2 ALABAMA: Stanford v. St. Louis-San Francisco R. Co., 214 Ala. 611, 108 So. 566 (1926);

ILLINOIS: Allaire v. St. Luke's Hospital, 184 Ill. 359, 56 N.E. 638 (1900);

MASSACHUSETTS: Dietrich v. Northamption, 138 Mass. 14, 52 Am.Rep. 242 (1884);

MISSOURI: Buel v. United R. Co., 248 Mo. 126, 154 S.W. 71 (1913);

NEW YORK: Drobner v. Peters, 232 N.Y. 220, 133 N.E. 567 (1921);

OHIO: Krantz v. Cleveland, Akron, Canton Bus Co., 32 Ohio N.P.N.S. 445 (1933);

RHODE ISLAND: Gorman v. Budlong, 23 R.I. 169, 49 A. 704 (1901);

TEXAS: Magnolia Coca Cola Bottling Co. v. Jordan, 124 Tex. 347, 78 S.W.2d 944, 97 A.L.R. 1513 (1935);

WISCONSIN: Lipps v. Milwaukee Electric R. & Light Co., 164 Wis. 272, 159 N.W. 916 (1916);

IRELAND: Walker v. Great Northern R. Co., Ir.L.R. 28 C.L. 69 (1891).

3 See cases cited in the annotation at 10 A.L.R.2d 1054, 1064:

LOUISIANA: Cooper v. Blanck, 39 So.2d 352 (La.App.1923);

PENNSYLVANIA: Kine v. Zuckerman, 4 Pa.Dist. & Co.R. 227 (1924);

CANADA: Montreal Tramways v. Leveille, Can.S.C. 456, D.L.R. 337 (1933).

4 The 27 jurisdiction allowing recovery for prenatal injuries are divided into four categroies: a) those which have allowed common law negligence actions to surviving children (13); b) those which have allowed wrongful death actions on the rationale that a viable fetus could recover under the applicable wrongful death act (10); c) Massachusetts, which has held that a non-viable fetus was a person within the meaning of the Massachusetts wrongful death act; d) those which in actions under survival type wrongful death statutes have held that the injured unborn child could have brought a common law negligence action had he survived (3).

In the following jurisdictions a surviving child has been held to have a common law right of action for negligently inflicted prenatal injuries:

CALIFORNIA: Scott v. McPheeters, 33 Cal.App.2d 629, 92 P.2d 678 ...