Salazar v. St. Vincent Hospital

619 P.2d 826, 95 N.M. 150

• Court: New Mexico Court of Appeals
• Decided: September 30, 1980
• Docket: 4111
• Status: Published

Opinions

OPINION

WOOD, Chief Judge.

Plaintiff, individually sought damages for the alleged negligence and malpractice of defendants in taking care of her vaginal bleeding. Those claims are not involved in this appeal. Plaintiff, as personal representative of the estate of her fetus, sought damages for the wrongful death of the fetus. The trial court dismissed the wrongful death claims on the basis that they failed to state a claim upon which relief could be granted. Such a dismissal, under R.Civ.Proc. 12(b)(6), requires an acceptance, as true, of all facts well pleaded. Runyan v. Jaramillo, 90 N.M. 629, 567 P.2d 478 (1977). The second amended complaint alleges the “fetus was aged more than thirty weeks of gestation, was a viable fetus,. and was alive at the time” of the alleged negligence and malpractice. Viability being accepted as true for the purpose of dismissing the wrongful death claims, there is no question of viability or its implications in this appeal. See generally, Presley v. Newport Hospital, 117 R.I. 177, 365 A.2d 748 (1976). The issue is whether damages may be recovered, in New Mexico, for the wrongful death of a viable fetus. On this subject generally, see Annot., 15 A.L.R.3d 992 (1967).

Common Law

By Laws 1875-76, ch. 2, § 2 “the common law as recognized in the United States of America, shall be the rule of practice and decision.” Section 38-1-3, N.M.S. A.1978. Faced with the meaning of “as recognized” and “in the United States”, Browning v. Est. of Browning, 3 N.M. 659, 9 P. 677 (1886) held:

[T]he legislature intended by the language used in that section to adopt the common law, or lex non scripta, and such British statutes of a general nature not local to that kingdom, nor in conflict with the constitution or laws of the United States, nor of this territory, which are applicable to our condition and circumstances, and which were in force at the time of our separation from the mother country.

Speiser, Recovery for Wrongful Death 2d (1975) § 1:1 states that the common-law rule denying a right of recovery for wrongful death “derives from a dictum of Lord Ellenborough in the case of Baker v. Bolton”, 1 Camp. 493, 170 Eng.Rept. 1033 (1808). Moragne v. States Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970) comments that the “first explicit statement of the common-law rule against recovery for wrongful death came in ... Baker v. Bolton,” supra. If the statements in Speiser, supra, and Moragne, supra, are correct, then it may be doubted that the common-law rule existed in New Mexico; Baker v. Bolton, supra, was decided in 1808, which was after our separation from the “mother country.” However, Smedley, Wrongful Death-Bases of the Common Law Rules, 13 Vand.L.Rev. 605 (1960), indicates that the statements in Speiser, supra, and Moragne, supra, are incorrect.

Malone, The Genesis of Wrongful Death, 17 Stan.L.Rev. 1043 (1964-65), points out that the common-law rule was an ancient one. Doubts as to the applicability of the rule, in New Mexico, were foreclosed by Ickes v. Brimhall, 42 N.M. 412, 79 P.2d 942 (1938). Ickes affirmed the existence of the common-law rule in New Mexico: “And, except as superseded or abrogated by statute or constitution, or held to be inapplicable to conditions in New Mexico, the common law remains the rule of practice and decision.”

There having been no right of recovery for wrongful death by the “common law” defined in Browning v. Est. of Browning, supra, the parties dispute whether there is a right of recovery for the wrongful death of a fetus under the New Mexico wrongful death statute.

The Statute

A right of recovery for wrongful death was enacted by Laws 1882, ch. 61, § 2. Laws 1891, ch. 49, § 1 amended the 1882 law. This 1891 amendment carried forward the substance of Section 2 of the 1882 Act. Stang v. Hertz Corporation, 81 N.M. 69, 463 P.2d 45 (Ct.App.1969), aff’d, 81 N.M. 348, 467 P.2d 14 (1970). This 1891 amendment also added an additional phrase. The statute, after the 1891 amendment, appears as § 41-2-1, N.M.S.A.1978. It reads (the phrase added by the 1891 amendment is emphasized):

Whenever the death of a person shall be caused by the wrongful act, neglect or default of another, although such death shall have been caused under such circumstances as amount in law to a felony, and the act, or neglect, or default, is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured.

Plaintiff contends this statute was general, prospective and remedial. We agree; the statute provides for recovery “in every such case . . . notwithstanding the death of the person injured.” The emphasized language, added by the 1891 amendment, expressly repudiates one of the reasons advanced for denying recovery at common law-that there could be no recovery for an act that constituted both a tort and a felony because the tort was less important than the offense against the Crown, and the tort either merged into, or was preempted by the felony. Moragne v. States Marine Lines, supra.

This general, prospective and remedial statute, by its language, applied to the death of a “person”. The only issue as to the applicability of the statute, in this case, is whether “person”, as used in the statute, included a viable fetus.

Was a viable fetus a person at common law, using “common law” as defined in Browning v. Est. of Browning, supra? As to tort cases, there was no recovery for wrongful death. See Blackstone’s Commentaries, Book 3 (Lewis’s Edition, 1902) page 119. Thus, there was no issue as to whether there could be recovery for the wrongful death of a fetus. As to the protection the common law extended to the property interests of an unborn child, the vesting of the property interest seems to have depended on the child being born alive. Doe v. Clarke, 2 H.Bl. 399, 126 Eng. Rept. 617 (1795); Beale v. Beale, 1 P.Wms. 244, 24 Eng.Rept. 373 (1713); Winfield, The Unborn Child, 8 Cambridge L.J., page 77 (1944); Roe v. Wade, 410 U.S. 113 at 162, 93 S.Ct. 705 at 731, 35 L.Ed.2d 147, 93 S.Ct. 705 (1973). This same approach was applied in interpreting Lord Campbell’s Act. The George and Richard, The Law Reports, Volume III, Admiralty and Ecclesiastical Cases, 466 at 480 (1871).

As to criminal cases, Bracton, writing early in the 13th century, stated the killing of a quick fetus was homicide. 2 Bracton, De Legibus Et Consuetudinibus Angliee (Twiss ed. 1879) page 279 states: “If there be some one, who has struck a pregnant woman, or has given her poison, whereby he has caused abortion, if the foetus be already formed and animated, and particularly if it be animated, he commits homicide.” However, Means, The Phoenix of Abortional Freedom: Etc., 17 N.Y.L.F. 335 (1971), reviews common law decisions and common law legal texts, and this review is to the effect that the killing of a fetus at common law whether or not viable was not a crime of any kind, that Bracton was in error in declaring the killing'to be a felony, and other writers were in error in declaring the killing to be a crime short of a felony. Roe v. Wade, supra, at 134, 93 S.Ct. at 717, states: “Whether abortion of a quick fetus was a felony at common law, or even a lesser crime, is still disputed.”

In light of the foregoing, our decision is not based on the status of a fetus at common law, as defined in Browning v. Est. of Browning, supra, and plaintiff does not contend that it should be.

Plaintiff claims that “person” in § 41-2-1, supra, includes a viable fetus, that the status of a viable fetus as a “person” has been established by “contemporary common law through legal and social evolution”. This approach, of giving a contemporary meaning to the words of a statute, was followed in O’Neill v. Morse, 385 Mich. 130, 188 N.W.2d 785 (1971). See also the approach of the dissenting opinion in the criminal case of Keeler v. Superior Court of Amador County, 2 Cal.3d 619, 87 Cal.Rptr. 481, 470 P.2d 617 (1970). Although not specifically stated, this seems to have been the basis for decision in a great many of the states which held that a viable fetus was a “person” or “minor child”. See cases cited in footnote 4 in Justus v. Atchison, 19 Cal.3d 564, 139 Cal.Rptr. 97, 565 P.2d 122 (1977), and in footnote 35 in Speiser, supra, § 4:36. Plaintiff argues that such an approach does no more than carry out the intent of the enacting legislature, which was to provide a damage recovery in order to protect human life and deter behavior that destroys such life.

We do not answer plaintiff’s argument in detail. To construe legislation on the basis of contemporary meanings of words used by the enacting legislature would make a mockery of legislative intent; legislative intent would change as new meanings were given to the statutory wording. Our function is to give effect to the legislative intent; “A statute should be interpreted to mean what the Legislature intended it to mean”. State ex rel. Newsome v. Alarid, 90 N.M. 790, 568 P.2d 1236 (1977). “A statute is to be interpreted as the legislature understood it at the time it was passed.” Pan American Petroleum Corp. v. El Paso Nat. Gas Co., 82 N.M. 193, 477 P.2d 827 (1970). Accordingly, we reject plaintiff’s “contemporary meaning” approach.

Whether a viable fetus is included within the word “person” in § 41-2-1, supra, is to be determined on the basis of the intent of the enacting legislature in 1882 inasmuch as the 1891 legislature made no change in the usage of “person”.

Bettini v. City of Las Cruces, 82 N.M. 633, 485 P.2d 967 (1971) states: “We must presume that the legislature was informed as to existing law, not only statutory law, but common law.” The legislature’s knowledge of the common law, in 1882, could not have been that no protection was accorded a fetus. The article by Means, supra, was not published until 1971. The legislative knowledge would have been that the killing of a quick fetus under the common law was a “heinous misdemeanor.” Blackstone’s Commentaries, Book 1 (Lewis’s Edition, 1902) page 130. Nevertheless, in this appeal, the knowledge of the common law that we attribute to the 1882 legislature is that no protection had been accorded a fetus.

In determining whether the 1882 legislature intended that a viable fetus was in-eluded within “person”, the statutory law is dispositive. Laws 1853-54, Act 28 is entitled “Defining Crimes and Punishments.’’ Chapter III of Act 28 is headed “Of Offences Against Lives and Persons.” The following two sections are a part of Chapter III:

Sec. 10. The willful killing of an unborn infant child, by any injury to the mother of such child, which would be murder if it resulted in the death of such mother, shall be deemed murder in the third degree.

Sec. 11. Every person who shall administer to any woman pregnant with a quick child, any medicine, drug, or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, and shall have been advised by a physician to be necessary for such purpose, shall, in case the death of such child or such mother be thereby produced, be deemed guilty of murder in the third degree.

These two sections were in effect in 1882; they appear in Compiled Laws 1897 as §§ 1073 and 1074. The first change in these laws occurred in 1907. Laws 1907, ch. 36, § 23 repealed Compiled Laws 1897, §§ 1073 and 1074. However, that same 1907 law, in §§ 5 and 6 reenacted the above-quoted statutes, with one change. The change upgraded the offenses from third degree to second degree murder. Laws 1907, ch. 36, § 5 codified in Code 1915 as § 1463 was repealed by Laws 1963, ch. 303, §§ 30-1. Laws 1907, ch. 36, § 6 has never been specifically repealed; however, it may have been impliedly repealed by Laws 1919, ch. 4, § 2, a part of a new abortion statute. The discussion in Roe v. Wade, supra, at pages 138-39, 93 S.Ct. at 719-20, concerning American law, is not a statement of New Mexico law.

From 1854 until 1919, New Mexico’s public policy, stated in legislation, was that a viable fetus was protected by criminal laws declaring a violation to be murder. The protection was in legislation which dealt with offenses against “lives and persons.”

The knowledge of statutory law that we attribute to the 1882 legislature is that a viable fetus was protected by legislation dealing with lives and persons.

What does criminal law protection of a viable fetus have to do with a civil action for the wrongful death of that fetus? Under the common law, as defined in Browning v. Est. of Browning, supra, civil liability evolved from the criminal law. “Our earliest examples seem all to be cases of undoubted violence with a strong criminal element. The plaintiff has been beaten, wounded, chained, imprisoned, starved, carried away to a foreign country, and has suffered many ‘enormities’.” Plucknett, A Concise History of the Common Law, (5th ed. 1956) at 465. The transition was from a deliberate assault to accidental injury to technical assault. Plucknett, supra, at 466.

Kearny Code of Laws (1846), Courts and Judicial Powers, § 24 recognized actions for trespass and trespasses on the case for “injuries to persons”. The original nature of trespass, as opposed to trespass on the case, was for deliberate acts. Plucknett, supra, at 465. The Kearny Code recognized actions for civil liability for willful and intentional criminal conduct, such as that prohibited by Laws 1853-54, Act 28, Chapter III, §§ 10 and 11. Concerning civil liability based on criminal conduct, Colbert v. Journal Publishing Co., 19 N.M. 156, 142 P. 146 (1914) states: “[A] wrongful act punishable as an offense, does not preclude exemplary damages therefor in a civil act sounding in tort.” Colbert, supra, is consistent with the civil liability for a criminal law violation discussed in Plucknett, supra.

In 1882, the wrongful killing of a viable fetus was a criminal offense. In 1882, civil liability existed for the commission of a criminal offense. That which was missing was a remedy. Moragne v. States Marine Lines, supra, states:

Where existing law imposes a primary duty, violations of which are compensable if they cause injury, nothing in ordinary notions of justice suggests that a violation should be nonactionable simply because it was serious enough to cause death. On the contrary, that rule has been criticized ever since its inception, and described in such terms as “barbarous.” ... Because the primary duty already exists, the decision whether to allow recovery for violations causing death is entirely a remedial matter.

The legislature of 1882 intended to provide a remedy “in every such case ... if death had not ensued”. Section 41-2-1, supra. In light of existing statutory provisions at the time of the enactment of § 41-2-1, supra, we hold the legislature of 1882 intended to provide a right of recovery for the wrongful death of a viable fetus. Compare Eich v. Town of Gulf Shores, 293 Ala. 95, 300 So.2d 354 (1974); Stern v. Miller, 348 So.2d 303 (Fla. 1977); Britt v. Sears, 150 Ind.App. 487, 277 N.E.2d 20 (1971).

A Current Common-Law Right

If our 1882 statute did not provide a remedy for the wrongful death of a viable fetus, then we could not say that the 1882 legislation was intended to occupy the entire field of recovery for wrongful death. See Justus v. Atchison, supra. Why? Because under Ickes v. Brimhall, supra, the common-law rule remains “except as superseded or abrogated by statute or constitution”. Thus, there would be no statute dealing with this remedy. In such a situation it would be appropriate to hold that the common-law rule, which barred recovery, was no longer applicable to our conditions and circumstances, see Browning v. Est. of Browning, supra. In such a situation we would hold that the remedy now exists. However, having held that the remedy exists under § 41-2-1, supra, it is unnecessary to discuss this approach in detail.

For changing conditions see: Hicks v. State, 88 N.M. 588, 544 P.2d 1153 (1975); Maestas v. Overton, 87 N.M. 213, 531 P.2d 947 (1975); Rodgers v. Ferguson, 89 N.M. 688, 556 P.2d 844 (Ct.App. 1976); Flores v. Flores, 84 N.M. 601, 506 P.2d 345 (Ct.App. 1973); see Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980); Moragne v. States Marine Lines, supra.

For development of a common-law remedy for injuries which caused the death of a viable fetus see: Justus v. Atchison, supra, concurring opinion of Justice Tobriner; Rainey v. Horn, 221 Miss. 269, 72 So.2d 434 (1954); Gaudette v. Webb, 362 Mass. 60, 284 N.E.2d 222 (1972).

The order dismissing the wrongful death claims is reversed. The cause is remanded with instructions to reinstate the wrongful death claims.

IT IS SO ORDERED.

LOPEZ, J., concurs. SUTIN, J., dissents.