Britt v. Sears

277 N.E.2d 20, 150 Ind. App. 487, 1971 Ind. App. LEXIS 547

Opinions

White, J.

The sole question presented in this appeal is whether, as against a motion to dismiss, an action may be maintained by a father for the wrongful death of a stillborn child alleged to be “a full term healthy male capable of independent life” with which its mother “was ... [at the time of its fatal injury] nine months and one week pregnant.” The statute on which the action here involved is predicated is IC 1971, 34-1-1-8, Ind. Ann. Stat. § 2-217 (Burns 1967) which, in pertinent part, provides:

“A father . . . may maintain an action for the . . . death of a child ....”

The trial court dismissed the plaintiffs complaint under Trial Rule 12 (B) (6) for failure to state a claim upon which relief could be granted.¹ For the purposes of reviewing the trial court’s ruling we must and do assume that the allegations in the plaintiff’s complaint are true.²

The question of whether the complaint (in the words quoted in the first sentence hereof) describes a child within the meaning of the statute above quoted has not been answered by legislative enactment nor by prior reported decision of an Indiana state court.³ Thus we have no rule by which to decide this appeal. But want of a law to follow furnishes no excuse for refusing to make a decision. When there is no rule to follow the court must make one, or, as some jurisprudents prefer, “discover” one.⁴

As judges usually do in like instances, we look to the decisions and opinions of courts in other common law jurisdictions. There we find many well reasoned opinions reaching opposite conclusions. At the present time it appears that questions almost identical to ours* *⁵ have been answered by opinion published in twenty-four of the United States and the District of Columbia. In sixteen of those states, and in the District of Columbia, it has been held that an action lies. In eight states, it has been held that no action may be maintained.⁶ This two-to -one majority is, in itself, quite impressive but not decisive.

The early reported cases in the United States dealt not with the question of wrongful death before birth but with pre-natal injury to a child thereafter born alive. The first such case is Dietrich v. Northampton (1884), 138 Mass. 14, 52 Am. R. 242, which iterated what is said to have been the common law belief that the unborn child is a part of the mother who is, therefore, the only “person” legally capable of sustaining injury.⁷ That reasoning thereafter was the basis, and in some states continues to be the basis, for denying both that a pre-natally injured child, after its live birth, has a cause of action for such injuries and that there is any cause of action for its wrongful death, particularly if (as here) the death occurs before birth. Some states have since found reasons for allowing the live-born child to maintain an action for damages for pre-natal injuries, while still denying to anyone a cause of action for a child’s pre-natal wrongful death.⁸

In the first reported cases in the United States to decide the question of whether an action may be maintained for the wrongful pre-natal death of a child, Verkennes v. Corniea (1949), 229 Minn. 365, 38 N. W. 2d 838, 839, 10 A. L. R. 2d 634, 638, the court rejected the basic premise of Dietrich that “the unborn child was a part of the mother.” Instead it quoted with approval a part of the following words from the dissent by Mr. Justice Boggs in Allaire v. St. Luke’s Hospital (1900), 184 Ill. 359, 370, 56 N. E. 638, 641, 48 L. R. A. 255 (in which the majority had denied a live-born child the right to maintain an action for pre-natal injuries), as follows:

“A foetus in the womb of the mother may well be regarded as but a part of the bowels of the mother during a portion of the period of gestation; but if, while in the womb, it reaches that prenatal age of viability when the destruction of the life of the mother does not necessarily end its existence also, and when, if separated prematurely, and by artificial means, from the mother, it would be so far a matured human being as that it would live and grow, mentally and physically, as other children generally, it is but to deny a palpable fact to argue there is but one life, and that the life of the mother. 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. If at that period a child so advanced is injured in its limbs or members, and is born into the living* world suffering from the effects of the injury, it is not sacrificing truth to a mere theoretical abstraction to say the injury was not to the child, but wholly to the mother?” (56 N. E. at 641) .⁹

The Verkennes opinion concluded:

“It seems too plain for argument that where independent existence is possible and life is destroyed through a wrongful act a cause of action arises under the statutes cited.” (38 N. W. 2d at 841).

But mere recognition of an unborn child’s independent existence at the time of injury, is not everywhere sufficient to give rise to a cause of action for its wrongful death unless the child is born before it dies. Several states which permit a living child to maintain an action for a tortious injury suffered before a birth, deny its administrator, parent, or next of kin the right to maintain either a wrongful death action¹⁰ or a survival action* ¹¹ based on a pre-natal injury unless the child is first born alive. Sometimes the obstacle is wording peculiar to that state’s wrongful death or survival statute as in California where a statute authorized an action for the death of a “minor person”, defined as a person under 21 years of age, with age required to “be calculated from the first minute of the day on which persons are born . . . .” In Norman v. Murphy (1954), 124 Cal. App. 2d 95, 268 P. 2d 178, 181, the court .said “. . . even if ... an unborn, viable child is ‘a person’ within the meaning of our law, it could not be held to be ‘ a minor person’.” In some cases it is held that there is no provable pecuniary loss.¹² Or “proof of pecuniary injury and causation is immeasurably more vague than in suits for pre-natal injuries.”¹³ These reasons are often coupled with the assertion that compensation for the loss of the stillborn infant is provided in the mother’s action for her own injuries in which she can recover for her own suffering¹⁴ and emotional upset¹⁵ occasioned by the stillbirth and that the mother’s husband in his action for his losses occasioned by her injury may recover medical and interment expenses occasioned by the stillbirth.¹⁶ All of these reasons (and others we have not mentioned) lead some to the conclusion that “[t]he considerations of justice which mandate the recovery of damages by an infant, injured in his mother’s womb and born deformed through the wrong of a third party, are absent where the foetus, deprived of life while yet unborn, is never faced with the prospect of impaired mental or physical health.”¹⁷ And, of course, that familiar self-justification of our sense of oughtness which is so often relied on by judges and lawyers, i.e., legislative intent, is not forgotten.¹⁸

We fully recognize that any action to recover damages for a wrongfully caused death is purely a creature of statute¹⁹ and concede, arguendo, that the Legislature has the power and right to create a cause of action in the father for the wrongful death of his children born alive while withholding that right as to children stillborn.²⁰ But we find no objective reason for saying that the 1881 Legislature which gave the father the right to “maintain an action for the injury or death of a child” did not intend “child” to include a stillborn child. Whatever was in their minds is not recorded and is, at best, a matter of mere supposition. But if we may, arguendo, indulge in our own supposition it would be this: That since actions for pre-natal injuries and deaths were then unknown in Indiana jurisprudence²¹ our lawmakers very probably gave no thought to whether they were creating an action for prenatal injury or pre-natal death, or whether their word “child” was the same word “child” so often used in referring to a pregnant woman is being “with child”.²²

More helpful than speculation on the intent of 1881 legislators is consideration of the many instances in which, for other purposes, the law has recognized the unborn child as a person.

As to the early common law we are directed to this statement in 1 Blackstone COMMENTARIES 129:

“Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb. For if a woman is quick with child, and by a potion or otherwise killeth it in her womb; or if any one beat her whereby the child dieth in her body, and she is delivered of a dead child; this though not murder was by the ancient law homicide or manslaughter . . . An infant in [sic] ventre sa mere, or in the mother’s womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate, made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. And in this point the Civil law agrees with ours.”

Indiana has followed the common law in according property and inheritance rights to unborn children. Biggs v. McCarty (1882), 86 Ind. 352; Swain v. Bowers (1927), 91 Ind. App. 307, 158 N. E. 598.

Indiana statutes have also recognized the unborn infant as a child. The second of our 1905 anti-abortion statutes, Ind. Ann. Stat. § 10-106 (Burns 1956) includes the proviso, “except when done by a physician for the purpose of saving the life of mother or child.”

The “Public Health Code of Indiana”²³ defines “stillbirth” as meaning “a birth after 20 weeks of gestation which is not a live birth.”²⁴ (“Live birth” is defined as “the birth of a child who shows evidence of life after the child is entirely outside the mother.”)²⁵ “The person in charge of interment [i.e., a licensed funeral director²⁶] shall file a certificate of death or of stillbirth with the local health officer.”²⁷ The funeral director is required to obtain the data for the certificate and present it to the physician “who shall certify the cause of death upon the certificate of death or of stillbirth.”²⁸ “If the death or stillbirth occurred without medical attendance . . . the local health officer shall inquire . . . and certify the cause of death . . .”.²⁹ “If the circumstances suggest that the death was caused by other than natural causes . . .” the case shall be referred to the coroner for investigation.³⁰ “Upon receipt of a properly executed certificate of death or of a stillbirth ... a local health officer . . . shall issue a permit for the disposal of the body.”³¹ The funeral director “shall secure a permit . . . prior to any disposition of the body.”³²

The foregoing statutes clearly indicate that with respect to health regulations concerning deaths a stillbirth is treated exactly the same as any death of any human being (even to requiring a coroner’s investigation in suspicious cases). Although the express definition of “Dead body” in the Health Code is vague with respect to whether it includes a stillborn body, the whole tenor of the act indicates that it does. The requirement of § 35-1908 that “[t]he person in charge of interment shall secure a permit prior to any disposition of the body . . . .” clearly requires a burial permit for the disposition of stillborn bodies as well as those which have died after birth. Which means that neither type of body can be disposed of except as permitted by the Indiana General Cemetery Act³³ defining interment as “any lawful disposition of the remains of a deceased person as provided by [§ 21-1019]. ...” § 21-1019 (Burns 1971) provides:

“Subject to the rights of transportation and removal of dead human bodies, or other disposition of such bodies, as provided by law, the remains of all deceased persons dying in the state of Indiana .. . shall be deposited in the earth, in an established cemetery, in a mausoleum or in a columbarium .... The remains of such bodies that shall have been cremated may be deposited in mausoleums or columbaria or deposited in the earth----”

Short of donating the body for purposes specified in the Uniform Anatomical Gift Act, Ind. Ann. Stat. § 35-4801 et seq.,34 there is no way that a stillborn today may be disposed of legally except by interment. Which means not only that it is treated as the body of any other child who has died, but also that the parents of a child negligently killed one day before birth have “burial” expenses just as though it were killed one day after birth.

Having carefully considered the arguments pro and con, as made by the parties and as stated in the cases cited, we concluded that it is both just and logical to treat an unborn child who has been 280 days in gestation as having a legal being and legal personality distinct from that of its mother although it is enclosed in its mother’s body and therefore dependent upon her breath for oxygen and upon her food for nourishment. Whether any and every child who has been in gestation that period of time would live if artifi cially delivered (without untoward injury being incurred in delivery) we do not profess to know and need not know to decide this case. The complaint here alleges that the child was capable of independent life. Furthermore, it is common knowledge that most children who live are children who have been delivered at or quite close to this point in the chronology of their gestation.³⁵ We see no basis for holding that the plaintiff here did not lose a child merely because of the fortuitous circumstance that its period of gestation had continued a little longer than is the case with many other children who live a normal life.

We therefore hold that “a full term healthy male capable of independent life” with which its mother, at the time of its death in her womb, “was then nine months and one week pregnant” is a “child” within the meaning of the statute which provides that “ [a] father . . . may maintain an action for the . . . death of a child. . . .”³⁶

The judgment is reversed and the cause remanded for further proceedings not inconsistent with the views expressed in this opinion.

Sharp and Staton, JJ., concur.

Hoffman, C. J., dissents with opinion.

Footnotes

1

. The complaint asserts two claims, Count I, the claim here involved and Count II, the husband’s claim for loss of his wife’s services, etc. Count I, only, was dismissed without making it a final judgment as provided in Trial Rule 54 (B). Appellee did not raise the question of the appealability of the ruling. After the question was called to the attention of counsel at oral argument a supplemental entry by the trial court pursuant to TR 54 (B) was duly certified to this court. Therefore, pursuant to AP 4 (B) (after Jan. 1, 1972, AP 4 (E)) we treat the dismissal of Count I as an appealable final judgment.

2

. See 1 Harvey, INDIANA PRACTICE 605: Thus, we not only assume the truth of the facts descriptive of the stillborn child at the time of the fatal injury but also the conclusion that it was stillborn as the proximate result of defendant’s negligence.

3

. In Schulty v. Stecy (N.D. Ind. 1967), F. Supp., 11 Ind. Dec. 198, U.S. District Judge Beamer, anticipating that “Indiana courts would not allow recovery for the stillbirth of a child,” dismissed an action by the father but suggested, without citing Indiana authority, that the mother could recover for her mental distress caused by the “loss of the child.” Nothing was said of the parents’ burial expense.

4

. “Again, the function of a judge is not mainly to declare the Law, but to maintain the peace by deciding controversies. Suppose a question comes up which has never been decided, —and such questions are more frequent than persons not lawyers generally suppose, —the judge must decide the case somehow; he will properly wish to decide it not on whim, but on principle, and he lays down some rule which meets acceptance with the courts, and future cases are decided in the same way. That rule is the Law, and yet the rights and duties of the parties were not known and were not knowable by them. That is the way parties are treated and have to be treated by the courts; it is solemn juggling to say that the Law, undiscovered and undiscoverable, and which is finally determined in opposite ways in two communities separated only by an artificial boundard, has existed in both communities from all eternity.” Gray, THE NATURE AND SOURCES OF THE LAW, p. 110.

5

. Not only do the statutes differ from state to state but the facts, particularly the period of gestation, differ from case to case.

6

. The reported cases (by jurisdiction) which have allowed the action are: CONNECTICUT: Hatala v. Markiewicz (1966), 26 Conn. Supp. 358, 224 A. 2d 406; DELAWARE: Worgan v. Greggo & Ferrara, Inc. (1956), 50 Del. 258, 128 A. 2d 557; DISTRICT OF COLUMBIA: Simmons v. Howard University (D.D.C. 1971), 323 F. Supp. 529; GEORGIA: Porter v. Lassiter (1955), 91 Ga. App. 712, 87 S. E. 2d 100; IOWA: Wendt v. Lillo (1960, D.C. Iowa), 182 F. Supp. 56 (applying Iowa law); KANSAS: Hale v. Manion (1962), 189 Kan. 143, 368 P. 2d 1; KENTUCKY: Mitchell v. Couch (1955, Ky.), 285 S. W. 2d 901; LOUISIANA: Valence v. Louisiana Power & Light Co. (1951, La. App.), 50 So. 2d 847; MARYLAND: State use of Odham v. Sherman (1964), 234 Md. 179, 198 A. 2d 71; MICHIGAN: O’Neill v. Morse (Mich. 1971), 188 N. W. 2d 785; MINNESOTA: Verkennes v. Corniea (1949), 229 Minn. 365, 38 N. W. 2d 838, 10 ALR 2d 634; MISSISSIPPI: Rainey v. Horn (1954), 221 Miss. 269, 72 So. 2d 434; NEVADA: White v. Yup (Nev. 1969), 458 P. 2d 617; NEW HAMPSHIRE: Poliquin v. MacDonald (1957), 101 N.H. 104, 135 A. 2d 249; OHIO: Stidam v. Ashmore (1959), 109 Ohio App. 431, 11 Ohio Ops. 2d 383, 167 N. E. 2d 106; SOUTH CAROLINA: Fowler v. Woodward (1964), 244 S.C. 608, 138 S. E. 2d 42; WEST VIRGINIA: Panagopoulous v. Martin (D.C., W. Va. 1969), 295 F. Supp. 220; WISCONSIN: Kwaterski v. State Farm Mutual Auto Ins. Co. (1967), 34 Wis. 2d 14, 148 N. W. 2d 107.

Those eases which have denied it are: CALIFORNIA: Norman v. Murphy (1954), 124 Cal. App. 2d 95, 268 P. 2d 178; MASSACHUSETTS: Keyes v. Constr. Service Inc. (1960), 340 Mass. 633, 165 N. E. 2d 912; NEBRASKA: Drabbels v. Shelly Oil Co. (1951), 155 Neb. 17, 50 N. W. 2d 299; NEW JERSEY: Graf v. Taggert (1964), 43 N.J. 303, 204 A. 2d 140; NEW YORK: Endresz V. Friedberg (1969), 24 N.Y. 2d 478, 248 N. E. 2d 901; NORTH CAROLINA: Gay v. Thompson (1966), 266 N.C. 394, 146 S. E. 2d 425, 15 ALR 3d 983; OKLAHOMA: Howell v. Rushing (1953 Okla.), 261 P. 2d 217; PENNSYLVANIA: Marko v. Philadelphia Transp. Co. (1966), 420 Pa. 124, 216 A. 2d 502; TENNESSEE: Hogan v. McDaniel (1958), 204 Tenn. 235, 319 S. W. 2d 221.

7

. Note, The Law and the Unborn Child, 46 NOTRE DAME LAWYER 349, 354 (1971). “[A] more accurate statement, according to Salmond, Torts, 346 (10th Ed., Stallybrass, 1945), would have been that there was no English authority on either side of the question.” Amann v. Faidy (1953), 415 Ill. 422, 114 N. E. 2d 412, 416.

8

. Among those states are California (Scott v. McPheeters [1939] 33 Cal. App. 2d 629, 92 P. 2d 678, 682), New Jersey (Graf v. Taggert [1964], 43 N.J. 303, 204 A. 2d 140), North Carolina (Gay v. Thompson [1966], 266 N.C. 394, 146 S. E. 2d 425, 15 A. L. R. 3d 983), and New York (Endresz v. Friedberg [1969], 24 N.Y. 2d 478, 248 N. E. 2d 901). See also 2 Harper and James, THE LAW OF TORTS, § 18.3, p. 1031.

9

. The rationale of the Boggs dissent was adopted by the Supreme Court of Illinois a half century later in the decision of Amann v. Faidy (1953), 415 Ill. 422, 114 N. E. 2d 412, 418. This later case held that an action would lie for the wrongful death from a prenatal injury of child born alive. We have found no reported Illinois case involving an action for wrongful death before birth.

10

. By “wrongful death action” we mean an action authorized by some form of so-called Lord’s Campbell’s Act.

11

. By “survival action” we mean an action for personal injuries which, by statute, survives the death of the injured person.

12

. Graf v. Taggert (1964), 43 N.J. 303, 204 A. 2d 140, 144; Gay v. Thompson (1966), 266 N.C. 394, 146 S. E. 2d 425, 428, 15 A. L. R. 3d 983; see also 2 Harper and James, THE LAW OF TORTS § 18.3, p. 1031.

13

. Endresz v. Friedburg (1969), 24 N.Y. 2d 478, 248 N. E. 2d 901, 903.

14

. Id.

15

. Graf v. Taggert, supra, n. 12.

16

. Endresz v. Friedburg, supra, n. 14.

17

. Id.

18

. Id.

19

. In re Estate of Pickens (Ind. 1970), 263 N. E. 2d 151, 155, 23 Ind. Dec. 263; Northern Ind. Power Co. v. West (1941), 218 Ind. 321, 32 N. E. 2d 713, 716.

20

. Superficially, at least, the United States Supreme Court’s decisions under the Equal Protection Clause •with respect to illegitimate children cast some doubt on the constitutionality of excluding unborn and stillborn children. Levy v. Louisiana (1968), 391 U. S. 68; Glona v. American Guarantee Co. (1968), 391 U. S. 73; Labine v. Vincent (1971), 401 U. S. 532, 91 S. Ct. 1017. See also Reed v. Reed (Nov. 22, 1971), 404 U. S. 71, 92 S. Ct. 251 (sexual discrimination).

21

. At least none had found its way into reports of the courts of appellate jurisdiction.

22

. “Behold, a virgin shall be with child, and shall bring forth a son. . . .” Matthew 1:23 (King James version). Webster’s New Int. Diet., 2nd Ed., Child 1.

23

. Ind. Ann. Stat. § 35-101 et seq.

24

. Ind. Ann. Stat. § 35-1702, Cl. 3 (Bums (1969).

25

. Id. § 35-1702, Cl. 2.

26

. Since Ind. Ann. Stat. §21-1001 (Burns 1971), the definition section of the Indiana General Cemetery Act (§§21-1001 — 21-1030), defines interment as “any lawful disposition of the remains of a deceased person” and Ind. Ann. Stat. § 63-722 (Burns 1971), being § 6 of the 1939 Embalmers and Funeral Directors Act, as amended, (IC 1971, 25-15-1-1 et seq.), provides:

“Dead human bodies shall not he in any way prepared for burial except in an approved embalming room by a person so licensed to do embalming in this state; and no permit for the burial of a dead human body shall he issued by any health officer in this state to any person other than to a duly licensed funeral director, holding a license hereunder."

It is obvious that “the person in charge of interment” must be a licensed funeral director.

27

. Ind. Ann. Stat. § 35-1901 (Burns 1969).

28

. Id. §§ 35-1902, 35-1903.

29

. Ind. Ann. Stat. § 35-1904 (Burns 1971).

30

. Ind. Ann. Stat. § 35-1905 (Burns 1969),

31

. Id. § 35-1907.

32

. Id. § 35-1908.

33

. Ind. Ann. Stat. § 21-1001 et seq. (Burns 1964 and 1971).

34

. Ind. Ann. Stat. § 35-4801(b) (Burns 1971), the definition section of the anatomical gift act, § 35-4801 (b), defines “decedent” as being a “deceased individual and includes a stillborn infant or fetus.”

35

. “Some authorities consider normal human gestation to last not 280 days but rather 260 to 265 days. Lee-Greenhill, Principles & Practice of Obstetrics (8th Edition 1943), page 8.” Beaman v. Hedrick (1970), 146 Ind. App. 404, 255 N. E. 2d 828, 830, n. 1.

36

. IC 1971, 34-1-1-8, also Ind. Ann. Stat. §2-217 (Burns 1967).