Bayer v. Suttle

23 Cal. App. 3d 361, 100 Cal. Rptr. 212, 1972 Cal. App. LEXIS 1216

• Court: California Court of Appeal
• Decided: February 7, 1972
• Docket: Civ. 26890
• Status: Published

Opinions

Opinion

CALDECOTT, J.

Plaintiffs appeal from the judgment of dismissal after an order sustaining a demurrer to plaintiffs’ first amended complaint.

The complaint alleged in substance that on May 4, 1967, due to the negligence of the defendants, their car collided with a car driven by Regina Bayer who was in the eighth month of pregnancy. Regina Bayer was thrown violently in the car so as to injure the unborn child. At the time of the accident, the child was alive and viable. She died as the result of her injuries on May 8, 1967, and was delivered of her mother stillborn. The plaintiffs allege that they are the parents and the sole surviving heirs of the child and are seeking damages for the wrongful death of the child. The plaintiffs were compelled to incur obligations for medical services and hospitalization for which they ask special damages. They also ask general damages for deprivation of “the protection, comfort, society, support and maintenance of Michelle Regina Bayer.”

The defendants’ general demurrer to the complaint was sustained. The defendants’ motion to dismiss the action for failure to amend the complaint was granted.

This case is before this court on the propriety of the sustaining of a demurrer. The allegations of plaintiffs’ complaint therefore must be regarded as true and it must be assumed that the plaintiffs can prove all the facts as alleged. (Speegle v. Board of Fire Underwriters, 29 Cal.2d 34, 41 [172 P.2d 867]; Custodio v. Bauer, 251 Cal.App.2d 303, 310 [59 Cal.Rptr. 463, 27 A.L.R.3d 884]; Mercer v. Elliott, 208 Cal.App.2d 275, 277-278 [25 Cal.Rptr. 217].)

The question of whether an action can be maintained for the wrongful death of a child when the child is not born alive has been considered in a number of jurisdictions since the action was first allowed in Minnesota in 1949. (Verkennes V. Corniea, 229 Minn. 365 [38 N.W.2d 838, 10 A.L.R.2d 634].) California is one of a minority of states which have held that the action is not maintainable. (See 15 A.L.R.3d 992.)¹

In 1954, in a case of first impression, Norman v. Murphy, 124 Cal.App.2d 95 [268 P.2d 178], the court held that the parents of an unborn child carried within its mother for a period of four and one-half months could not bring an action for its death en ventre sa mere. Although the case involved a nonviable fetus rather than, as here, a viable fetus of eight months, the rationale of the case applies with equal facility to the viable.² The court in Norman v. Murphy based its decision on an interpretation of Code of Civil Proceedure section 377, the wrongful death statute. Code of Civil Procedure section 377 reads in pertinent part as follows: “When the death of a person not being a minor, or when the death of a minor person who leaves surviving him either a husband or wife or child or children or father or mother, is caused by the wrongful act or neglect of another, his heirs . . . may maintain an action for damages against the person causing the death, . . .”

The court in Norman v. Murphy turned to Civil Code sections 25 and 26 for the definition of “a minor person.” Section 25 provides in part that “[mjinors are all persons under 21 years of age. . . .” Section 26 calculates the period “from the first minute of the day on which persons are bom to the same minute of the corresponding day completing the period of minority.”

Since Norman was decided, Civil Code section 377 has been amended without specifying a cause of action for wrongful death of an unborn child. We recognize the significance of the legislative inaction in the light of pertinent judicial precedent.

Furthermore, Civil Code section 29 provides in part: “A child conceived, but not yet bom, is to be deemed an existing person, so far as may be necessary for its interests in the event of its subsequent birth; . . .” As pointed out in Norman v. Murphy, supra, the right of action for wrongful death, not having existed in the common law, is “unqualifiedly statutory.” In the interpretation of statutes, every word, phrase, or provision is presumed to be intended by the Legislature to have meaning and perform a useful function. (See 45 Cal.Jur.2d 613.) If an unborn child is legally a person there would be no useful function to be performed by the section in deeming the child a person for this one limited purpose.³

Thus we must conclude that the Legislature did not intend to include an unborn child within the meaning of “person” in Code of Civil Procedure section 377.

The judgment is affirmed.

Draper, P. J., concurred.

1 Cases which have held that an action for the wrongful death of an unborn child is maintainable where the fetus was viable at the time of the injury: Connecticut: Gorke v. LeClerc (1962) 23 Conn.Supp. 256 [181 A.2d 448]; Hatala v. Markiewicz (1966) 26 Conn.Supp. 358 [224 A.2d 406]; Delaware: Worgan v. Greggo & Ferrara, Inc. (1956) 50 Del, (11 Terry) 258 [128 A.2d 557]; Georgia: Porter v. Lassiter (1955) 91 Ga.App. 712 [87 S.E.2d 100]; Iowa: Wendt v. Lillo (N.D. Iowa 1960) 182 F.Supp. 56; Kansas: Hale v. Manion (1962) 189 Kan. 143 [368 P.2d 1]; Kentucky: Mitchell v. Couch (Ky. 1955) 285 S.W.2d 901; Maryland: State v. Sherman (1964) 234 Md. 179 [198 A.2d 71]; Minnesota: Verkennes v. Corniea, supra; Ohio: Stidam v. Ashmore (1959) 109 Ohio App. 431 [167 N.E.2d 106]; South Carolina: Fowler v. Woodward (1964) 244 S.C. 608 [138 S.E.2d 42] and Todd v. Sandidge Construction Company (4th Cir. 1964) 341 F.2d 75; West Virginia: Panagopoulous v. Martin (S.D.W.Va 1969) 295 F.Supp. 220; Wisconsin: Kwaterski v. State Farm Mut. Automobile Ins. Co. (1967) 34 Wis.2d 14 [148 N.W.2d 107.]

It has been stated in the following cases that an action will not lie for the wrongful death of a stillborn child: California: Norman v. Murphy (1954) 124 Cal.App.2d 95 [268 P.2d 178]; Florida: Stokes v. Liberty Mutual Insurance Company (Fla. 1967) 202 So.2d 794; Massachusetts: Keyes v. Construction Service Inc. (1960) 340 Mass. 633 [165 N.E.2d 912]; Nebraska: Drabbels v. Skelly Oil Co. (1951) 155 Neb. 17 [50 N.W.2d 229]; New Jersey: Graf v. Taggert (1964) 43 N.J. 303 [204 A.2d 140]; New York: Endresz v. Friedberg (1966) 52 Misc.2d 693 [276 N.Y.S.2d 469]; North Carolina: Gay v. Thompson (1966) 266 N.C. 394 [146 S.E.2d 425, 15 A.L.R. 3d 983]; Oklahoma: Howell v. Rushing (Okla. 1953) 261 P.2d 217; Padillow v. Elrod (Okla. 1967) 424 P.2d 16; Pennsylvania: Carroll v. Skloff (1964) 415 Pa. 47 [202 A.2d 9]; Marko v. Phila. Transp. Co. (1966) 420 Pa. 124 [216 A.2d 502]; Tennessee: Hogan v. McDaniel (1958) 204 Tenn. 235 [319 S.W.2d 221] and Durrett v. Owens (1963) 212 Tenn. 614 [371 S.W.2d 433]; Michigan: Estate of Powers V. City of Troy (1968) 380 Mich. 160, [156 N.W.2d 530].

2 A viable fetus is one which has reached a stage of development sufficient to enable it to live outside the uterus, generally seven months. (Webster’s Intern at. Dict.)

3 A few states have specifically held that an unborn child is not a person. (See Dietrich v. Northampton (1884) 138 Mass. 14; State v. Dickinson (1971) 28 Ohio St.2d 65 [57 Ohio Ops.2d 255, 275 N.E.2d 599].) See also Keeler v. Superior Court, 2 Cal.3d 619 [87 Cal.Rptr. 481, 470 P.2d 617, 40 A.L.R.3d 420], for an excellent discussion of the meaning of “human being” as that term is used in the California Penal Code.