Womack v. Buchhorn
This text of 187 N.W.2d 218 (Womack v. Buchhorn) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
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. Detroit (1937), 281 Mich 60, 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 Jiehalf of *720 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). 1 The case concluded “Plaintiff has no cause of action under the common law or any statute” (p 64).
Since Newman has been decided, medical science has probably advanced more in one generation than in the previous 100 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 8 other than Michigan denying *721 recovery for prenatal injuries and three 3 allowing it. Today 27 American jurisdictions 4 allow recovery. *722 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
*723 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 six cases from other jurisdictions 10 relied on by the Alabama Court in Stanford (fn. 5), all of which were also relied upon by this Court in Newman, all have now been overruled.
*724 This Court must therefore face forthrightly 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 (1951), 303 NY 349 (102 NE2d 691) overruling Drobner v. Peters (1921), 232 NY 220 (133 NE 567, 20 ALR 1503) (one of the cases relied on by this 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.)
This Court has followed the same legal philosophy. For example, in Bricker v. Green (1946), 313 Mich 218, 232, Justice Bushnekl speaking for the Court quoted and adopted the following language of the Wisconsin Supreme Court:
*725 “ 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, therefore, at liberty to change the rule in the needs of justice, and to conform to the overwhelming majority rule.’ Reiter v. Grober [1921], 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 (1961), 361 Mich 1, 10, 11.
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 (1960), 31 NJ 353, 364, 365, (157 A2d 497, 503).
“Candor compels acknowledgment that the decision rendered today is a new ruling.” Griffin v. Illinois (1956), 351 US 12, 25 (76 S Ct 585, 100 L Ed 891, 55 ALR2d 1055) (concurring opinion of Justice Frankfurter).
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Cite This Page — Counsel Stack
187 N.W.2d 218, 384 Mich. 718, 1971 Mich. LEXIS 260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/womack-v-buchhorn-mich-1971.