Leal v. C. C. Pitts Sand & Gravel, Inc.

413 S.W.2d 825, 1967 Tex. App. LEXIS 2236

Opinions

BARROW, Chief Justice.

This is an action by parents for wrongful death of their infant daughter as a result of injuries sustained in an automobile collision when the mother was about six or seven months pregnant. Appellants alleged that shortly after the accident the mother commenced having labor pains and after hard labor the infant was born prematurely and died two days later. The question presented is whether Texas Courts recognize a cause of action under the Wrongful Death Statute (Arts. 4671-4678, Vernon’s Ann.Civ.St.), based on a prenatal injury to a viable child born alive, but dying as a result of the prenatal injury. The trial court sustained an exception to this severed cause of action and dismissed same.

This question has not been before the Texas Supreme Court since 1943. As late as 1949, the rule, as supported by the numerical weight of authorities throughout the United States, was that a child or its personal representative, in the absence of statute, had no right of action for prenatal injuries. See 10 A.L.R.2d 1059. In 1949 the Ohio Supreme Court in Williams v. Marion Rapid Transit, Inc., 152 Ohio St. 114, 87 N.E.2d 334, 10 A.L.R.2d 1051, held there was a cause of action for injuries to a viable child en ventre se mere which resulted in its being born with crippling injuries, and the Minnesota Supreme Court in Verkennes v. Corniea, 229 Minn. 365, 38 N.W. 2d 838, 10 A.L.R.2d 634, held there was a cause of action for wrongful death where an unborn viable child died undelivered because of defendant’s negligence. These holdings have been followed by numerous cases from twenty-four different jurisdictions, many of them expressly overruling prior holdings, which have brought about an abrupt reversal of the earlier rule denying recovery.¹ 38 Wash.L.Rev. 390.

These cases uniformly recognize a cause of action for prenatal injuries, although some authorities have said the rule should be limited to a fetus which was viable at the time of the injury,

Footnotes

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1a and some authorities require that the child he born alive.1b Pros-ser, Law of Torts, 3rd Ed., pp. 356-357. It is recognized that an action for wrongful death will, in a large measure, turn upon the construction of the death statute of the particular State, i. e., under the Texas statute evidence of pecuniary loss is necessary to support a judgment for parents for death of a child. Banker v. McLaughlin, Tex.Civ. App., 200 S.W.2d 699, aff., 146 Tex. 434, 208 S.W.2d 843, 8 A.L.R.2d 1231; Jasper County Lumber Co. v. McMillan, Tex.Civ. App., 188 S.W.2d 731, writ ref’d.

Appellants frankly concede that the case law of this State is now against such a cause of action. In Magnolia Coca Cola Bottling Co. v. Jordan, 124 Tex. 347, 78 S.W.2d 944, 97 A.L.R. 1513 (1935), the Court considered the identical question presented here of whether damages could be recovered under the Texas wrongful death statute for the death of a child resulting from prenatal injuries. The Court, after a review of authorities from other jurisdictions which had uniformly denied recovery for prenatal injuries, together with a construction of the Texas wrongful death and “homicide” statutes, determined that the trial court had correctly held that the parents could not recover damages for the death of the child which had lived nineteen days after its birth. See also, Lewis v. Steves Sash & Door Co., Tex.Civ.App., 177 S.W.2d 350 (1943, writ ref’d); Turnknett v. Keaton and Acuff, Ct. of App., 5th Cir., 266 F.2d 572.

Appellants urge, however, that this rule should now be reviewed in view of the overwhelming trend of the cases allowing liability for prenatal injury to a viable child. We agree with this proposition, however, this question is properly one for the Supreme Court or the Legislature. It is our duty as an intermediate court, in our judicial system, to follow the' decisions of our Supreme Court. Swilley v. McCain, 374 S.W.2d 871 (Tex.Sup.1964); Slocum v. Galveston County, Tex.Civ.App., 410 S.W. 2d 487, no writ; Stewart v. Janes, Tex.Civ.App., 393 S.W.2d 428, writ ref’d; Tunnell v. Otis Elevator Co., Tex.Civ.App., 400 S. W.2d 781, 783, writ ref’d, n. r. e., Tex., 404 S.W.2d 307; Campbell v. Campbell, Tex. Civ.App., 362 S.W.2d 904, 908, writ dism’d; McClelland v. Briscoe, Tex.Civ.App., 359 S.W.2d 635, 638; 15 Tex.Jur.2d, Courts, § 137.

The trial court correctly held, under the authority of Magnolia Coca Cola Bottling Co. v. Jordan, supra, that damages may not be recovered by parents under the Texas Wrongful Death Statute for the death of an infant from prenatal injuries.

The judgment is affirmed.

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. Smith v. Brennan, 31 N.J. 353, 157 A.2d 497 (1959); Hornbuckle v. Plantation Pipe Line Co., 212 Ga. 504, 93 S.E.2d 727 (1956); Rodriguez v. Patti, 415 Ill. 496, 114 N.E.2d 721 (Ill.1953); Rainey v. Horn, 221 Miss. 269, 72 So.2d 434 (1954); State of Maryland, Use of Odham v. Sherman, 234 Md. 179, 198 A.2d 71 (1964); Sinkler v. Kneale, 401 Pa. 267, 164 A.2d 93 (Pa.1960); Puhl v. Milwaukee Auto Ins. Co., 8 Wis.2d 343, 99 N.E.2d 163 (1960); Seattle-First Nat. Bank v. Rankin, 59 Wash.2d 288, 367 P.2d 835 (1962); Hatala v. Markiewicz, 26 Conn. Supp. 358, 224 A.2d 406 (1966).

. Prates v. Sears, Roebuck & Co., 19 Conn.Sup. 487. 118 A.2d 633 (1955); Gorke v. Le Clerc, 23 Conn.Sup. 256, 181 A.2d 448 (1962); Worgan v. Greggo & Ferrara, Inc., 11 Terry 258, 128 A.2d 557 (Del.1956); Wendt v. Lillo, 182 F.Supp. 56 (D.C.Iowa 1956); Hale v. Manion, 189 Kan. 143, 368 P.2d 1 (1962); Mitchell v. Couch, 285 S.W.2d 901 (Ky.1955); Valence v. Louisiana Power & Light Co., 50 So.2d 847 (La.App.1951); Damasiewicz v. Gorsuch, 197 Md. 417, 79 A.2d 550 (1951); Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838, 10 A.L.R.2d 634 (1949); Woods v. Lancet, 303 N.Y. 349, 102 N.E.2d 691 (1951); Jasinsky v. Potts, 153 Ohio St. 529, 92 N.E.2d 809 (Ohio 1950); Mallison v. Pomeroy, 205 Or. 690, 291 P.2d 225 (1955); Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964); Hall v. Murphy, 236 S.C. 257, 113 S.E.2d 790 (1960); Shousha v. Matthews Drivurself Service, Inc., 210 Tenn. 384, 358 S.W.2d 471 (1962).

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. Amann v. Faidy, 415 Ill. 422, 114 N.E. 2d 412 (1953); Keyes v. Construction Service, Inc., 340 Mass. 633, 165 N.E.2d 912 (1959); Howell v. Rushing, 261 P.2d 217 (Okl.1953); In re Logan’s Estate, 3 N.Y.2d 800, 166 N.Y.S.2d 3, 144 N.E.2d 644 (1957); Norman v. Murphy, 124 Cal.App.2d 95, 268 P.2d 178 (Calif.1954); West v. McCoy, 233 S.C. 369, 105 S.E.2d 88 (1958); Hogan v. McDaniel, 204 Tenn. 235, 319 S.W.2d 221 (1958); Bennett v. Hymers, 101 N.H. 483, 147 A.2d 108 (N.H.1958).