Baldwin v. Butcher

Oren L. as Administrator the Estate Baldwin, Deceased

Michael Baldwin, Allen Joseph Butcher, Jr., et al.

(No. 12930) 11, Submitted May 1971. Decided 22, June 1971. Dissenting Opinion July 1971.

Rehearing Denied November 1971. Ketchum, Greene, Baker, Ketchum & Menis E. appellant.

Campbell, Woods, Emerson, Bagley, McNeer & Hern- don, McNeer, C. F. R. Bagley, G. for appellees. Judge:

Haymond, question sole to be upon appeal determined from the final judgment of the Circuit Court Cabell County rendered October dismissed the plaintiff, Baldwin, Oren L. Administrator Baldwin, deceased, estate of Michael Allen still- born child, is whether under Article Sections 7, Chapter 55, Code, 1931, amended, known as the State, death statute of this an action viable;

maintained for the of a unborn wrongful death injured child which was as the subsequently stillborn result the negligence of the defendants.

In this action Circuit of Cabell instituted Court County, defendants, the a from plaintiff recovery seeks the Jr., Joseph Butcher, Jones, Jones, H. Dolores Willard Johannah in Fugitt Fugitt, Ratcliff and William the of $10,000 amount for the death of the plaintiff’s decedent. complaint amended de- alleges plaintiff’s that the

cedent, en sa viable, ventre mere injured and on was 14, 1966, September. mother, a guest passenger when his in a motor vehicle Johannah driven the defendant by Fugitt Ratcliff collided a motor with vehicle driven Butcher, the defendant Joseph Jr. which the plain- caused on September tiff’s decedent’s death 1966. In addition to the of lack of the negligence,: defense defendant Butcher, Jr., Joseph interposed and relies upon the defense complaint that the amended to a fails state claim against him upon granted relief can which the reason plaintiff’s decedent, the whose death is alleged have from injuries to resulted sus- the tained, was life in and that being injuries the the miscarriage give do not rise to wrongful death action.

By agreement óf the the parties, defendants Johannah Fugitt Ratcliff and William were from Fugitt dismissed action. this The defendants, Dolores H. Jones and Willard Jones, filed a to on grounds motion the dismiss same asserted the. defendant Joseph Butcher, Jr. It. was dismiss, stipulated by parties the motion that the should be treated as a motion for on judgment pleadings. By its final judgment court, a special circuit judge acting in lieu of the regular judge, sustained the motion dis- on miss the ground the amended failed complaint state claim against upon the defendants which relief action, granted, could be the plaintiff’s dismissed Jones and Wil- defendants, costs to Dolores awarded granted Court H. Jones. From that this judgment, lard plaintiff. appeal upon application decision May On case was submitted oral record and the briefs and the upon this Court respective parties. behalf of argument 1966, at September 14, the intersection Seventh On Huntington, Cabell City and First Avenue Street Butcher, defendant, County, Joseph West Virginia, defendants, by the Jr., driving an automobile owned while Jones, H. Dolores Jones collided with and Willard by Jo- Fugitt automobile William and driven owned guest Fugitt Nancy hannah Ratcliff. Baldwin was at the time was in the Ratcliff passenger automobile collision child. As a pregnant with result riding she she was thrown from vehicle which was later, days Two personal injuries. and suffered extensive on of a stillborn September 16, she was delivered death, Michael whose child who was named Allen Baldwin certificate, by to caused trauma according the death was from an automobile accident. resulting Baldwin, 13, L. was 1967, plaintiff, October the Oren of Michael personal estate appointed administrator Baldwin, deceased; instituted Allen and this action was 17, by October 1967. plaintiff no of action for dam- right

At common there was law by person by of a ages injury for occasioned the death 55, Grogg, act. wrongful Adams v. 153 W.Va. S.E.2d 755; Coal Swope Keystone v. and Coke 78 W.Va. 517, 284, also Jackson v. 89 S.E. L.R.A. 1917A 1128. See Hart- Cockill, 710; Dunsmore v. 138 S.E.2d W.Va. Death, man, C.J.S., 25A W.Va. by wrongful Section 13. As no of action for death right law, or cause of action for right act existed at common death, and maintainable, by if exists under statute provisions virtue Code, 7, Chapter 55, State, Sections 5 and Article this has in amended, been existence since which year of the formation of and been amended this State has from time to respect damages time principally with for wrongful recoverable in an action death. Section 5 of statute, provides to the extent here that pertinent, “Whenever be person the death of shall act, neglect, default, act, or and or neglect (if default is such as ensued) would death had not have injured entitled the an party maintain action to recover thereof, then, case, in every and in respect such the person who, which, or corporation would have been liable ensued, if death to an had shall liable damages, notwithstanding per- the death of the son injured, although the death shall have been caused under as amount in circumstances law murder in the first or degree, manslaughter. second or ^{[*] [*]} sic »

Though the question for decision has not been consid- ered or in decided State and a question of first impression jurisdiction, it has been considered and determined other jurisdictions numerous with various results in conflicting decisions. question was first considered in Dietrich Inhabi- tants Northampton, (1884) 138 Rep. Mass. Am.

242, Holmes, court opinion Justice denied recovery on the grounds that there was no prece- dent for such recovery the unborn child was part of its mother at any the time of the and that injury to it damage which was not too remote to be recovered was recoverable her. That decision was followed years several in other jurisdictions. The proposition an unborn child was a part mother vigorously was and persuasively challenged in the dissenting Justice Allaire Boggs in Luke’s Hospital, (1900), v. St. 184 359, 638, Ill. 56 225, N.E. 48 L.R.A. has which been over- ruled by Amann v. Faidy, 422, 415 Ill. 114 N.E.2d 412. In Judge dissent Boggs asserted that a fetus must be regarded as a life from distinct that of its mother it when the prenatal reaches of viability state at which it could if survive separated then from her.

435 in Verkennes Minnesota, 1949, In Court of Supreme 634, Corniea, 838, v. 10 A.L.R.2d 365, 229 Minn. 38 N.W.2d State, that, held under death statute of that wrongful child, of an unborn personal representative existence, capable of whose separate independent defendants, death is acts maintain death behalf of kin of next the deceased child. Since decision courts, in a jurisdictions question number considered, has death been have held under wrongful statutes, an action may be maintained to recover Hatala v. unborn a viable child. Markiewicz, he Gorke v. 358, 406; 26 Conn. 224 Sup. A.2d Clerc, 23 Conn. 448; Worgan Greggo v. 256, 181 Sup. A.2d Ferrara, Inc., & Porter v. 258, 557; 50 128 A.2d Del. Manion, Lassiter, Hale 100; 91 Ga. 712, 87 S.E.2d v. App. Rizk, Rice 143, Kan. 1; 189 368 (Ky.) P.2d v. 453 S.W.2d Couch, State, Mitchell v. Use 732; (Ky.) 901; 285 S.W.2d Sherman, Odham v. 234 Rainey 179, 71; Md. 198 A.2d v. Horn, 269, White 221 Miss. Yup, 434; 72 So. 2d 85 v. Nev. MacDonald, 527, 458 P.2d 617; Poliquin v. 104, 101 N.H. Ashmore, Stidam 249; 135 A.2d 431, v. 109 11 Ohio App. Woodward, Fowler v. Op. 383, Ohio 2d 106; 167 N.E.2d 244 608, Kwaterski v. State Farm Mutual 42; S.C. Automobile Insurance 14, 34 148 Wis.2d N.W.2d. Rizzo, Gullborg 107; Todd v. (3 Cir.) v. 331 557; F.2d Sandidge Construction Company, 75; (4 Cir.) 341 F.2d Lillo, (D.C.Iowa) Wendt v. 56; 182 Panagopoulous Supp. F. Martin, v. (S.D.W.Va.) A.L.R.3d, F. 295 220. See Supp. 15 Annotation, 2, Section page 995. courts, however,

Other which have considered question, deny recovery for the wrongful death of an un- born child. Norman v. Murphy, 124 95, Cal. 2d App. 268 Stokes 178; Liberty Mutual Insurance Company, P.2d v. (Fla.) Keyes Service, Inc., v. Construction 794; 202 So. 2d Estate 633, 912; 340 Mass. Powers v. City 165 N.E.2d Troy, 418; Mich. App. Skelly Drabbels v. 145 N.W.2d Oil Company, 155 Neb. 229; Taggert, N.W.2d v. Graf 140; Endresz N.J. A.2d Friedberg, 24 N.Y.2d In re Estate 301 N.Y.S.2d N.E.2d Logan,

436 Estate, 50 49; Bradley’s 4 Re 283, Misc. 2d 156 N.Y.S.2d N.C. 72, 657; Thompson, 266 Gay Misc. 2d N.Y.S.2d v. 269 Elrod, 394, 983; 15 Padillow v. 425, 146 S.E.2d A.L.R.3d (Okla.) 16; Philadelphia Transportation 424 Marko v. P.2d 415 502; Skloff, v. Company, 124, Carroll 420 Pa. 216 A.2d 614, 9; Owens, 212 371 47, Pa. 202 Durrett v. Tenn. A.2d 433; Tire 210 Va. Company, Lawrence v. Craven S.W.2d Annotation, Section 138, 3d, 169 S.E.2d 440. See 15 A.L.R. 3, page 999. child that a

The courts have held jurisdictions in several injuries who after of prenatal birth dies as a result Tori- for death. through representative sue his N.E. gian 446, News 225 Company, v. Watertown 352 Mass. 412; Steg- 422, 926; Faidy, 2d Amann Ill. 114 N.E.2d v. 415 Greg- gall Morris, 577; Kelly v. 1224, v. 363 Mo. 258 S.W.2d Potts, 542, 696; v. ory, Jasinsky 282 N.Y.S.2d App. Div. 125 236 S.C. 809; Murphy, Hall 529, 153 Ohio St. 92 N.E.2d v. Ser- 257, 790; 113 Shousha v. Matthews S.E.2d Drivurself vice, Inc., 384, 210 Tenn. 358 S.W.2d 471. intestate,

In the case the court held that Torigian mother, three her then about at the though time auto- in an was involved pregnant, and one-half months’ negligence by mobile accident which was lived defendant, prematurely born but who was action hours, an could maintain about two and one-half for death. her administrator may' Many right courts also hold that who, negligence infant maintained in behalf continue defendant, prenatal injuries sustains Pipe Hornbuckle v. Plantation after the birth of the child. 727; Tucker v. How- 504, Line 212 Ga. 909; Inc., 201, 65 Sons, ard Carmichael & 208 S.E.2d L. Ga. 691; Dama- Meier, 218, N.E.2d v. 33 Ill. 2d 178 Daley App. v. Gorsuch, 417, 550; Keyes A.2d siewicz v. 197 Md. 79 912; Service, Inc., 633, 165 N.E.2d Construction 340 Mass. v. 483, 108; Smith Bennett v. 101 N.H. 147 A.2d Hymers, Lancet, 303 Brennan, 497; v. 31 A.2d Woods N.J. 1250; v. 102 N.E.2d 27 A.L.R.2d Williams N.Y. Transit, Inc., 114, 87 N.E.2d Rapid Marion 152 Ohio St. Kneale, 1051; 2.67, A.L.R.2d Pa. Sinkler A.2d Recovery Wrongful Chapter Speiser, Death, Section 4.29. previously indicated,

As an action right to maintain for wrongful death exists virtue

statute, pertinent the ear- provisions quoted which are lier in opinion. Richards, Admr., this In v. Riverside Iron Works, 510, 56 437, Court, discussing W.Va. 49 S.E. in this the provisions of Section 5 of statute said: “The stat- the gives ute the right to institute and the suit. prosecute statute, But for our the action could not be maintained.” opinion also contains this “The statute is language: remedial, and should be liberally construed for the pur- pose of carrying out v. legislative the intent.” In Wilder Charleston 814, Transit Company, 319, 120 W.Va. 197 S.E. 948, 117 A.L.R. Court, considering wrongful death said: statute “The policy the statute is remedial and not punitive.” In Wheeling ex rel. City of Carter v. 584, American Casualty 131 Company, W.Va. 404, 48 S.E.2d is this statute, being statement: “The reme- dial, Morris, should be liberally Steggall construed.” In v. 1224, 363 Mo. 577, 258 S.W.2d the court remedial said statute should not be strictly construed even it though changes a State, common-law rule. In Use Odham v. Sherman, 234 179, court, Md. 198 A.2d to referring Campbell’s Lord Maryland Act and the wrongful death statute said: “What true of Campbell’s Lord Act is also true of the allowing statute to child’s cause action survive and be litigated by an administrator. Both statutes are remedial and to designed close a in the gap preexist- ing law.”

Under the express provisions wrongful death statute, in order maintain action for wrongful death there must be the death a person and the death must be caused act, such wrongful neglect or default would, if death had not ensued, have entitled injured to such party maintain damages to recover wrongful such death. It is therefore necessary, case, the decision of determine whether a viable 438 of a negligence death is

unborn child whose of the statute. meaning is a within person defendant hold, under the numerous cited cases The decisions model- jurisdictions in the various death statutes Act enacted Campbell’s Lord English after the ed may be maintained that an action Parliament unborn death of a viable recover within person child is a viable unborn child, Among the statutes. meaning child is unborn hold that a viable many cases which F. Martin, (S.D.W.Va.) 295 Panagopoulous are: v. person (4 Construction 220; Sandidge Todd v. Supp. & Carmichael 75; Howard L. Cir.) 341 F.2d Tucker v. Couch, v. Sons, Inc., 909; Mitchell Ga. Gorsuch, 197 Md. 901; Damasiewicz v. (Ky.) 285 S.W.2d Corniea, 365, 38 Minn. 550; v. 417, 79 A.2d Verkennes Horn, 221 Miss. 634; Rainey v. 838, 10 A.L.R.2d N.W.2d 1224, 258 Morris, Mo. 434; Steggall 2d v. 72 So. 617; P.2d Nev. Yup, S.W.2d White 809; Fowler Potts, 529, 92 N.E.2d Jasinsky v. 153 Ohio St. Murphy, Hall v. Woodward, 608, 244 138 v. S.C. S.E.2d Farm v. State 257, 790; Kwaterski 236 S.C. 14, 148 34 Mutual Insurance Wis.2d Automobile 107. N.W.2d Panagopou case of

In the considered recent well Martin, 220, opinion (S.D.W.Va.) Supp. lous 295 F. v. pertinent statements: contains these Judge Christie a or not controversy as whether respect “With to the wrongful ‘person’ contemplated fetus is a as of an statutes, recognition it our that death is from to protection unborn child as a entitled person supra, Hospital, Luke’s injuries, Allaire v. St. prenatal necessarily requires Judge Boggs), (dissenting opinion a ‘person’ also an child is holding a that such unborn of the in the context a raised question when such is Ashmore, Ohio 109 v. death statute. Stidam appears a conclusion (1959). Such 431, 167N.E.2d 106 App. fact that technically correct view only fact, a is, presently a child ‘biologically speaking’ such Couch, v. Mitchell being, a human existing person, living 1955), (Kentucky, S.W.2d 901 but it also has the a appeal consistency, ought consideration which carry some weight making judicial decisions. * * *. a an indi- Having recognized once viable fetus as vidual capable life from mother independent apart and having accorded to of a such individual status distinct being capable of find sustaining legal wrong, we difficulty no in holding that a child is a ‘person’ within intendment Death Virginia’s Wrongful West Statute.” Couch,

In Mitchell v. (Ky.) S.W.2d the court said: “The cogent reason, believe, most for holding we a viable unborn child is an entity meaning within the the general ‘person’ because, speak- word is biologically ing, such a is, child in fact, a presently existing person, * * living human being.

In Horn, Rainey v. Miss. 72 So. 2d court used language: hold, therefore, “We child, unborn after viability it reaches the prenatal age when the destruction of the life of its mother does not necessarily also, when, mean the end of its life if separated from its mother far a would be so matured human being that it would grow mentally live and physically, a person; is and if such child dies before birth result of the negligent another, act of an action may be maintained its death the wrongful under death statute.”

In Fowler Woodward, 244 S.C. S.E.2d court, considering death statute almost identical with the quoted portion of the statute of State, in the opinion language: used this person

“Since viable child separation before from the body of its mother tor- prenatal injuries sonce tiousfy actionable, inflicted on child are it appar- is ‘act, ent that complaint the such an alleges neglect or by defendant, the injury child, to the of the default’ would have entitled the child ‘to maintain an action and * * * recover thereof if respect death had not By

ensued.’ very statute, terms this is the test of the right of an to maintain administrator an action for wrongful death.

“Some judges have taken the that if a child view should survive a prenatal injury, not, birth, it could before bring an action for damages; therefore, it is such a case urged, does not meet requirement in this statute respect. disagree.” We quoted last statement conflicts the statement with

in the in Lawrence v. Craven Tire Va. that are hold unwilling “We child, that a en ventre sa mere can maintain a common law action for personal injuries.” The conclusion reached case, that which by is cited and relied defen upon dants, is directly contrary many cited decisions which hold personal of a representative unborn child can maintain an action for its death caused by of a negligence defendant, and, with respect to whether an unborn child is a of the mother part until birth, is also contrary holding of this Court in Malone Monongahela Valley Traction Company, 104 W.Va. S.E. holding Jersey of the New Brennan, court in Smith v. 31 N.J. 157 A.2d 497. For these reasons this disagrees Court holding with the in the Lawrence case.

In the opinion Malone case, in the concerning the dam- ages child, recoverable the mother of a stillborn Court said: “She is not entitled to recover for the loss * * of the child, It is generally *. held that quite loss of the offspring is not proper element of damage. * * *(cid:127) When the injury results in a miscarriage the mother is entitled to damages to compensate her for the pain suffering occasioned the miscarriage, but not for the * * pain and suffering occasioned loss of the child. *.”

In the Smith case Court said: “From the foregoing it is clear that medical authorities recognize that before birth an infant distinct entity, and that the law recognizes rights he enjoy will when born can negli- of in cases his birth. If the law be violated before disregard to injuries were prenatal inflicted gently part child as an unborn and consider background for the recover be able to mother, then the mother should her, as just part of this incapacity pain, suffering, allowing such of no case any other We part. know recovery.” not an action which hold

Among the decisions child unborn of an for the be maintained which under statutes deny recovery are cases which being “not a person for the death of permit recovery Murphy, 124 Cal. minor”, a “minor Norman v. person”, or a “minor 95, 178, or for the death App. 2d 268 P.2d Insurance Mutual child”, Liberty Stokes v. damages 794, and cases in which

(Fla.) 202 So. 2d Gay v. injury”, “pecuniary limited to recoverable were 15 A.L.R.3d N.C. Thompson, 266 A.2d 303, 204 43 N.J. loss”, Taggert, or “pecuniary Graf 2d 4 Misc. Logan, In re Estate loss”, or “economic cases, the court Gay In the 156 N.Y.S.2d 49. Graf a person. child an unborn was did not determine whether not impose does death statute of this The state cited, but just cases involved any of the limitations aas damages recovery by permits Section 6 $10,000, to be exceeding not just fair and jury may deem provided proportion and in the parties distributed to the by left estate personal distribution for law damages intestate, permits and also dying persons loss sustained $100,000 pecuniary for financial and exceed decedent, of the distributees dependent hos and reasonable expenses funeral addition reasonable as result incurred expenses medical and other pital, defendant of the act, neglect or default in death. which resulted hold that many earlier cases of prenatal as a result child after birth dies who wrong- through representative sue his

injuries may hold also cited which death, and the numerous cases ful of a in behalf may be maintained that a of action right child who of a negligence defendant sustains in- jury which after child, continues the birth of the show that the clearly plaintiff’s decedent, alleged whose death is to have been caused by negligence defendants, is a person would, who if death ensued, had not have been entitled maintain action to recover wrongful death act, result of the wrongful neglect, or default of the person who would have been liable such damages if death had not ensued.

From the foregoing, it is clear that the allegations the amended complaint satisfy the requirements wrong- of the ful death statute of this State for the of an maintenance action to recover damages for wrongful the death of the plaintiff’s decedent.

In the decision of case, given consideration has been to the arguments various support the cases which hold that an action for the death of wrongful a viable unborn child may be maintained and those which hold that such an action maintainable; is not and such arguments have also been considered and evaluated recent cases of White Yup, Nev. 458 P.2d Kwaterski v. State Farm Mutual Automobile Insurance Company, 34 Wis.2d 107; and Todd N.W.2d v. San didge Construction Company, (4 Cir.) 341 F.2d 75.

Among the arguments that have been in sup- advanced port of the cases which hold that an action for wrongful death is not maintainable (1) (2) are lack of precedent; an unborn child ais part of its mother until birth and has no juridical existence; (3) such action open would door to fradulent proof claims the of which spec- would be ulative and difficult; (4) of action cause for the wrongful death of an unborn child should be created by the Legislature instead of being recognized by the courts.

The lack precedent argument groundless and con- trary to fact for the decisions which permit the mainte- nance an action for wrongful death aof viable unborn child now appear to constitute the weight of authority. As indicated, already the contention that viable unborn child is a part of body no juridi- mother and has cal existence, is unsound and has been in the de- rejected cisions of many courts. argument

The that the allowance such would open the door to fraud and proof would speculative and difficult is immaterial and no bearing has upon validity of the cause of action. lack of Difficulty proof are unrelated to and occur in frequently prosecution any case in which the existence of a cause action is unquestioned. argument that a cause of action for

death of a viable unborn child should be created Legislature instead of being recognized the courts is unsound in view of the number of wéll considered deci- sions which hold that such child is a person within meaning of death statutes which either or create authorize the survival of a of action for cause death. The contention that the Legislature never intended that death ap- statute should ply to the wrongful death of a viable unborn child is fallacious and convincing.

Arguments in advanced of support the decisions which hold that action may be for maintained the wrongful death of a viable unborn child are:

(1) child, If a a injured when viable fetus as a result of of negligence person, 'another a has cause of action bom, hold, when as many cases there should no be dif- ference in liability when the death just occurs before or just after the child is bom. The force of this argument is twins, clear in the case of one of which and is bom alive because of negligent prenatal injuries a dies within few hours, and the other of which because of such is injuries injustice The and the stillborn. patently illogical result of permitting an action for wrongful death in favor of the twin who is born alive but dies a within and few hours are of twin action in the stillborn

denying such behalf argument. no require supporting self-evident ex- fact, a (2) is, biologically A unborn child it has a because living being, human isting person it can presently a stage development reached such it. body live of the female as well as within outside death for the right If no of action is allowed inflicted wrong a a has been viable unborn child to the tradi- contrary no is remedy which there is which It established tional of the common law. is well policy damages for the loss the mother can not recover of the 'an her child and unless behalf stillborn had for can no can be recovery child be maintained of that which independent tort separate which is re- can mother for which she 'injuries caused the of the denial injustice The and the incongruity cover. unborn death of viable right of action for the guilty in a doctor child are situation evident of the child which negligence delivery perma- negligence and in case of doctor whose alive and survived. a child who was born nently injured child negligence cause the death doctor whose negligently immune from suit but the doctor who would be subject justly lived would injured the child who liability negligence. his child

If no in behalf of the unborn right action exists greater is that illogical the absurd and result situa and in such immunity harm the better the chance of merely tort-feasor, the child instead of by killing tion the for his acts. See it, escape liability negligent injuring could Todd v. San Yup, White 85 Nev. 458 P.2d 617 and Cir.) F.2d 75. didge Construction (4 In the Todd case, after dissenting judge, in which the Woodward, Fowler S.C. S.E. the decision dissent, contains majority opinion his 2d withdrew of action right “To balance the pertinent language: child, negligence fatally injured by upon whether of another, is bom dead or an artificial only alive seems not demarcation but unjust as To illustrate, well. if the trauma is severe enough child, to kill the then there could no recovery; but if serious, survive, less allowing the child there might be recovery. Again, if im- was fatality mediate, the suit could prevail, but if the death was protracted aby hours, minutes, birth, few even beyond the claim could succeed. Practically, it would mean that graver the harm the better the chance immunity. Moreover, it allows the act of the tortfeasor to foreclose his own liability life of the action would be in his —the These hands. results have sound cogency, aside quite from general reasons justifying statutes, the death the argument that those deprived of their own should not also be deprived of all recompense death.” The opinion also contains this statement: “Of course a rule fixing determinant, survival as the rather * * than viability *, appeal has the of simplicity. It might aid the judiciary but hardly justice.” See also Hatala v. Markiewicz, 26 Conn. Sup. 358, A.2d 406 for the same statement concerning the determinant.

An unborn possesses child certain rights at common law. This is indicated clearly by passage from Blackstone’s Book Pages 129-130: Commentaries, “The right of personal in a security consists person’s legal and uninterrupted enjoyment life, limbs, his his his body, health, his and his reputation. Life is im- gift God, mediate a right inherent by nature every individual; and begins it in contemplation of law soon * * as an infant is able stir in the An mother’s womb. *. enfant en mere, ventre sa womb, or in the mother’s supposed in law to be for many born It is purposes. capable having or a legacy, surrender of a copyhold estate made to it; it. It guardian assigned have and it is 'enabled to have an estate limited to its use and to take limitation, afterwards as if it then actually were born.” & Carmichael

In the in Tucker v. Howard L. discussing the Sons, Inc., S.E.2d Ga. this per- used Justice above Chief Duckworth quotation language: tinent that, in contempla-

“Thus it is says seen that Blackstone child is able law, begins of the life the tion common when legacy, It the can have can to stir in mother’s womb. to It estate, assigned an can it. guardian own and a be of the com- cannot that the seriously purpose be denied appointment guardian mon the of allowing law of the the unborn law processes child is to make available properties for the of the be- protection preservation common law to the child. There is in the longing nothing its to indicate that from such child it would withhold preserving for the of the processes purpose protecting It of child. would person property as well as the such seem an reflection upon therefore to us to be unwarranted common concern greater law to attribute to it itself of protection protection for the of than for the property recognition right prop- of the person. Whether in the child is the welfare erty upon unborn founded vitally the child or of each of more con- society, these is child impairments cerned about of the itself physical illogical, than about its It would therefore be property. n unrealistic,and and to unjust society— the child —both necessary for the for the processes law its withhold child, while, an at unborn protection person time, same making processes purpose such available its protecting property.” Under the for the rea- authorities, above quoted stated, provisions sons this Court holds that under Code, and 6, 7, Chapter 55, Article as Sections State, amended, of this statute personal representative action be maintained may for the death of unborn child such in the by injuries child caused sustained it while womb from the resulting negligence of mother defen- and, upon proof, damages may dant sufficient be recoverable under the in such statute be awarded action.

The judgment of the Circuit Court of Cabell County reversed and set aside and is remanded to that court for such further proceedings as may proper conformity the principles enunciated in opinion.

Reversed and remanded. Calhoun,, Judge, dissenting: I

Respectfully, dissent I because believe the Court’s de- cision this case at legal is variance fundamental with principles, including statutory provi- constitutional and sions of this state and general with the tenor of all prior decisions of this Court relating to actions death.

“Such parts law, of common and of the laws of this State as are in force goes operation, when this article into and are not repugnant thereto, shall he and continue the law the State repealed by legisla- until altered or of (Italics ture.” supplied.) VIII, Article Consti- Section tution of Virginia. West “The common law so England, of far itas is not repugnant principles of the Constitu- same, tion of State, shall continue within force except gen- those wherein respects it was altered eral assembly June, Virginia of day before twentieth be, eighteen been, hundred and or has or shall sixty-three, altered legislature (Italics supplied.) State.” Code, 1931, 2-1-1.

By reason the constitutional and statutory provisions above, the common quoted law is not to be construed as or changed altered unless legislative statute intent to do plainly Seagraves so “be manifested.” Legg, 127 S.E.2d 605. pt. syl., sternly W.Va. This Court “is to leave drastic unmistakably enjoined changes in the common legislative law to the branch of the state govern- Cunningham County ment.” v. The Court County, Wood 303, 308, 728. The W.Va. S.E.2d constitutional and statutory provisions to this question clearly deny common power Court all or jurisdiction change law. That power, by provi- both constitutional and statutory sions, is delegated to the exclusively legislature.

Inasmuch as the legislature given is the exclusive power to change the law, common it important the Court in this case to be mindful of the additional upon restriction power, jurisdiction or authority which is embodied in the following language V, of Article Section 1 of the Con- stitution of Virginia: legislative, West “The executive judicial departments separate distinct, shall be so that neither shall exercise the powers properly belonging * * others; either of the

Inasmuch as principles this case necessarily involves which are so basic governmental and fundamental in the structure, I trust that I of an charge acquitted effort to be dramatic I refer following portion when to the III, Article Section 20 of the Constitution of West Vir- ginia which, in my opinion, represents an expression ages: distilled “Free government wisdom and the blessings of preserved can be liberty any people only aby moderation, firm adherence to justice, temperance, * * *, and by frequent recurrence to fundamental principles.” pertinent

The portions of the death wrongful statutes this state are as follows: the death of a person “Whenever shall be caused act, by wrongful neglect, default, act, or and the neglect or is such as would (if death had default ensued) not have injured entitled the party maintain an action to recover damages respect thereof, then, case, and in every such the person

who, or corporation which, would have been liable if death ensued, had not shall be liable to an ** action for damages, (Italics supplied.) Code, 1931,55-7-5, as amended. “Every such action shall be brought by and in the name the personal representative such been, person duly appointed has deceased who * * such *, every amount recovered and the repre- personal said by action shall be recovered here- in accordance and be distributed sentative ** jury may action the *. In such every with. just, fair and damages they such deem award n dollars, and ten thousand exceeding par- to the amount recovered shall be distributed for the provided by ties and in the law proportion by persons distribution of estate left personal * * Code, (Italics dying supplied.) intestate. 1931, 55-7-6, as amended. in Adams v. from the following language dis- 755, 756, dearly 166 S.E.2d Grogg, W.Va. death wrongful rule that the action for closes the universal an action and that such wholly creature of statute statute: maintained if authorized only be “ right no law, there was ‘At the common the the for occasioned damages injury action for act.’ wrongful Such was death of a person by Coal and Coke Keystone Swope language Co., question, 284, reflecting, without 89 S.E. 78 W.Va. of action did right that a principle law, even death at common not though tortious one’s survive or such death were Cockill, Jackson v. 149 W.Va. act. See Hartman, 140 W.Va. 710; Dunsmore v. 138 S.E.2d S., Death, 357, the there is 25A C. J. Section ‘At common law reads: heading recovery no of action cause of a human for the death being.’ action right of no common law being “There action, main- act, if by wrongful

for death of the above tainable, grace only by exists provi- action the To maintain such statute. quoted * * followed. of that statute must be sions maintained may That have entitled as would injury of an only in case recovery action for to maintain person injured en- had not if his death injuries damages personal & O. Chesapeake Adm’x v. Hoover’s sued, recognized is Ry. Co., 46 268, 271, W.Va. 224, 225, 33 S.E. the sec point ond of the syllabus and in the body in Wright Davis, W.Va. 53 S.E.2d 335.

It is unmistakably clear, therefore, from the statute which makes provision for death, an action for wrongful and from this prior decisions, Court’s the action in- volved in this case cannot be maintained for the reason there was no “person” who, prior death, to his could have maintained a civil action for recovery personal injuries sustained by him. Assume that “viable unborn child” involved in this case had not died until a month after he sustained personal injuries which are alleged to have been wrongfully defendants. Could it be asserted with any semblance justification that, during the time, one-month interval of the “viable unborn child” awas “person” who had cause of action against the defendants for personal injuries he had sustained? obvious, The unassailable answer is the negative. It follows, inevitably therefore, that an ac- tion for wrongful death, based on wholly the pertinent statute, cannot be maintained in this case.

I am unable to accept the proposition that a “viable fetus” or a “viable unborn child” a “person” within the meaning the pertinent wrongful death statute. It makes no appeal to me to that, assert “biologically speaking” or from a medical viewpoint, in question fetus awas “person.” We are not concerned with the from question a medical or biological viewpoint. The presents case question of law and not one of medical concept or of bi- ology. From a legal standpoint, it does not satisfy me to assert that the fetus awas “child” merely because it had advanced to the state of “viability” that per- would have it, mitted unnatural, certain unusual circumstances, to leave the womb the mother and to live apart from her. The that, fact is when accident occurred, the fetus had no life from apart that of its mother. fact that, from or biological standpoint, medical the fetus had reached a state of signifies to me viability only that it a potential had aof life independent from that of the mother and therefore a potential, of uncer- fraught degree with at least some becoming of a tainty, being born alive and therefore “person,” apart a enjoying wholly life and existence from the mother. It is that it often my impression happens that a “viable” fetus not have the fortune to be good does and, bom therefore, indepen- alive to attain a life wholly of dent that of the mother.

I am astounded Court following the assertion of the in its of action for opinion: argument “The cause the death of a be viable unborn child should created by Legislature being recognized by the instead of * * the is biological courts unsound *.” The medical or of a concept is, opinion, compara- “viable” fetus in my recent tively concept in relation to the date of the enact- ment of in the Lord Act and its successors Campbell’s various of in this judicial states Our function country. case is to determine legisla- what was the intention of the tive of and in government, Virginia, branches in this state many our enacted when death statutes were so years ago. biological concepts More recent or medical of and recent court decisions “viability” comparatively authorizing wrongful upon death predicated actions the “wrongful death” of a cannot “person” fetus as in- be considered in properly determining legislative tent in this original involved enactment statutes category.

The Court involved states that the question in this case was and decided in an opinion first considered Inhabi- written in Dietrich v. Justice Holmes tants 52 Am. 242. Northampton, Rep. 138 Mass. all During ensuing century, of almost period circles question legal judical has been live one in land throughout with the result that courts appellate During are all that sharp disagreement. period now under- present day, legislature of this state has not bold, un- uncertainty by taking taken to resolve the fetus, that a mere step declaring legislatively realistic meaning otherwise, a “person” viable or within pro- aBy judicial our labored statute. functions nouncement, disregard judicial in a shocking and added amended this Court has now prerogatives, in existence since to a clear statute has been formation of our state. medi- biology in the fields persons

While skilled fetus, aof concept “viability” cine have developed the per- I of such knowing many be in how would interested a asserting of step sons would take the additional considered “viable unborn child” is a whether “person,” from a or from stand- biological standpoint medical or of of the word point meaning acceptation the common I have discussed “person.” The with whom physicians few regard court question any are amazed that would a “person.” “viable unborn child” as are Some courts death statutes hold that construed. liberally remedial and therefore should be in Other courts are der- take the view that such statutes be ogation strictly of the common and. hence should law 605; 22 C.J.S., Death, construed. 25A page Section Am. 2d, Death, readily concede page Section Jur. 610. I the statute should be construed in order to effec- liberally tuate the purpose providing remedial and beneficent from the death remedy recovery damages resulting I “person” wrongfully. be- which has been lieve, however, a strict rule of construction should be in relation to applied “per- whether word question son” used in the statute to a mere fetus or to applies when recognized “viable unborn child.” This distinction was Seattle, City applied Whittlesey v. 94 Wash. 193. P.

It to cite court lengthen opinion would needlessly stating concerning ques- decisions divergent views predi- tion whether are death. of this character upon prenatal cated Cases Death, C.J.S., in Annot. A.L.R.3d 25A Section listed (2), 625. page In construing applying wrongful death statute essentially Code, pertinent identical with the provisions 1931,55-7-5, amended, Supreme Virginia, Court of Lawrence, recent case of Tire Administrator v. Craven Va. 169S.E.2d declined to apply the wrongful death to a statute case the death of an involving unborn viable In I child. line with have reasoning which undertaken to express in this the Court dissenting opinion, made the following statement in that case: “We are en unwilling to hold that a child ventre

sa mere can maintain a common law action for personal injuries, and it plain is in that such a hold- ing would be order for necessary any right action to have been transmitted to the present plaintiff.” For reasons stated this dissenting I opinion, would affirm the judgment the Circuit Court of Cabell County.

Clarence R. Reece Yeager a corporation Sales, Inc., Ford a corporation

Ford Motor (No. 12950) Submitted September 28,1971. Decided November 1971.

Case Details

Case Name: Baldwin v. Butcher

Court Name: West Virginia Supreme Court

Date Published: Jul 2, 1971

Citation: 184 S.E.2d 428

Docket Number: 12930

Court Abbreviation: W. Va.