Eich v. Town of Gulf Shores
300 So. 2d 354
Ala.
1974
Check Treatment

*1 city ity or one of its boards marketplace.” equal

should that of escape payment City cannot

The from Bethunes for what received

them, is, prove if the Bethunes can implied contract.

their claim of an Since disputed,

many seriously of the facts are

however, not be con should implied was an holding

strued as that there

contract this Court believes the or side or the oth

facts are favorable to one

er. inappro- do hold that this case was

priate entry summary judg- for the of a

ment.

The is reversed and remanded.

Reversed and remanded.

HEFLIN, J., MERRILL, C. HAR- FAULKNER, JJ.,

WOOD EICH,

Charlotte as Mother of her unborn child, Deceased SHORES,

The TOWN OF GULF Alabama, et al.

SC 779.

Supreme Court of Alabama.

Sept. 12, 1974. *2 Boswell, Sigler, and Patrick Joseph M. J. Kearney, Mobile, appellant. Nicholas

B. Benjamen T.

Donald F. Pierce

Rowe, Mobile, appellees. injuries causing death before

live birth. action was filed the mother of child,

the fetal alleging that the father had abandoned the child thus had forfeited any right of action which he would nor *3 mally have been entitled to maintain under the Freight, statute. Crenshaw Alabama Inc., 372, 287 Ala. (1971); 252 So.2d 33 parte Roberson, 374, Ex 155 275 Ala. So.2d (1963); 330 McWhorter Transfer Co. v. Peek, 143, 167 232 Ala. 291 (1936). So. The basis of complaint her on 2, 1974, March she was involved an au- tomobile Highway accident on Alabama 59 South, Shores, less than a mile from Gulf Alabama. The driver of the other vehicle involved in Eugene the accident Edgar JONES, Justice. Kinsey, policeman for the of Gulf Town appeal comes to us from the Circuit accident, Shores. At the time of the Mrs. as County Court of Baldwin a result eight Eich was preg- and one-half months granting appellant’s of a motion to dismiss and, result, nant as injuries she suffered complaint ground on is no the there which culminated in the her death of fetal wrongful prenatal of action for child who alleges was stillborn. also She death of a stillborn fetus in Alabama.1 the child’s proximate death was the negligence result of Kinsey the he while hold that such an for was acting scope within the line and of his eight injury resulting in the death of an authority for the Town of Gulf Shores. be and one-half month old fetus can main 7, 119, tained under Tit. Code Ala Alabama’s § (Recomp. 1958). re bama 1940 Tit. Code of (Re- Alabama 1940 covery injury is so severe as to comp. father, where 1958), states that or the subsequently cause the death of a fetus mother imprison death or stillborn, inju and to where ment of the father or desertion the fa ry during re pregnancy ther, occurs and death may maintain death ac birth,2 sults therefrom after a live would tion on behalf of the minor child caused only by rewarding serve the tortfeasor him omission, negligence or severity inflicting injury. for his It any person. Basically, this section is bizarre, indeed, would be hold that the designed complete system furnish a for greater the harm inflicted the all actions better for the death of a minor child. opportunity for of the defend exoneration Adkison, Adkison v. 46 239 Logic, compel justice ant. fairness and So.2d 555 (1970), reversed on other action, here, recognition grounds, as for an 286 Ala. originally 1. The Suit as 2. filed named the Town The reference here is to the two recent police Smith, of Gulf and its officer driver cases Shores 289 Ala. parties original (1972) defendant. The defendants’ So.2d 596 and Wolfe immunity governmental (1973), defenses included as Ala. which are municipality fully opinion. to both the and the individual discussed more Subsequently, plaintiff defendant. waived against her claim and the individual Town governmental defendant waived his defense of immunity. nature of respect re- with Furthermore, damages identical (1970). may damages be recovered. entirely this section under coverable may damages jury as the assess’ ‘Such culpability of punitive and are based on by any rational rule of construc- cannot enormity of the and the the defendant one, punitive damages in tion mean preserva- imposed for the wrong, and are other; compensatory Swan, damages in the Magnusson v. tion of human life. so hold would legislation. simply act of statute fol- language The entire position is principal Appellee’s possible language closely as lows law, statutory substantive as a matter of (section 2486) of the older statute liability prerequisite birth is a live homicides; prevention Appellee in Alabama. damages authorized under that statute Code Tit. would have us construe always punitive been held to be strictly (Recomp.1958), of Alabama 1940 *4 only.” fetus. relation to a in as noninclusive the asser on grounds He this contention implement legislative It this in- was to this legislative intent of tion it is the that tent,. then, Supreme that the Alabama statutory legal for criterion section—the Court, through interpretation its of the his supportive of interpretation is —which phrase damages jury may as- “such as the However, position. not inclined we are sess,” provided vindication for the tort- contrary, to the accept argument. this To recov- feasor’s conduct. fetus is stillborn the where ery wrong- sanction would the tortfeasor’s legisla of is the effectuation essential to pri- clearly negate ful act the and would prin engrained deeply is tive intent. It objective of mary the statute. the jurisprudence ciple of Alabama wrongful death paramount purpose our of by ap recognize the cases cited preserva is the 123) (§§ statutes 119 construing “minor as pellee the term child” was this pervasive tion of human life.3 So including fetus,4 persuad not not but are Court, early as our dominant theme that ed that a strict construction here such misapprehension the corrected the necessary growth the of would insure un compensatory damages allowable were in this and the individual law vital area damages as statutory phrase “such der the Also, justice of the before us. we only may in while jury assess” separation of persuaded by appellee’s punitive under damages were allowable powers implication his argument, nor Louisville & in 123. phraseology same amending a judicially that we would be Bogue, Ala. Co. v. 177 Nashville R.R. legislative enactment. (1912). 58 392 So. fact, recovery in an ac- by allowing giving in in a consist- Bogue, The Court merely nature, extend- tion of this we are statutes, ob- interpretation to the two ent in with ing prerogative concert served : prior This Court decisions of Court. Smith, 289 relates homicides decided 1972 v. “Each section that there right (1972), action unknown Ala. confers a law, is language of each existed Alabama a cause common gee interesting, Jury Instructions— 2d It is 3. Pattern 268 P.2d 178 Alabama significance, Damages (1974). Civil, none of and not without 11.18 stat these cases are based on allowing punitive damages only. Typi McDonough, N.E.2d 339 utes 4. Leccese 279 v. Zimmerman, only McKillip cally, (Mass., 1972) ; 191 com the Florida statute allows Liberty damages 1971) ; pensatory parent (Iowa, the loss Stokes 706 N.W.2d (Fla., Co., of the minor child. 695 services 213 So.2d Mutual Insurance Cal.App. Murphy, 1968) ; and Norman v. right ance to maintain the action child which death of a fatally injured by whether the injury and child at the time viable year negligence following of the defendant born dead And in the was born alive. Therefore, illusory. unjust or alive is in Wolfe punitive wrong- because the nature of our recognized that Court (1973), our ful punishment death statute demands the irrelevant where concept viability was tortfeasor, believe that born alive do not of a fetus wrongful death appellee’s appropriateness argument is a decisions those two Neither concerned. is, in our valid one. today we decide nor the one func-

view, legislative usurpation Supreme As stated the U. Court S. necessary to breathe is often tion for it Wade, S.Ct. Roe v. U.S. become they less existing life into laws states (1973), some L.Ed.2d 147 is not con- stale and shelfworn. permitted recently parents of a have gov- branch of frontation with another action for stillborn child to maintain an in or- ernment, of effort unity but rather a prenatal inju- wrongful death because of useful existing may become der that law ries, action is theory being that such an In- promote justice. ends of law parents’ interest one vindicate observed, it was deed, already as we further went loss of the child. The Court ex- and not the judicial interpretation, subsequent to the say on to at least statutes, press terms of the pregnancy, end of the first trimester damages only are allowable punitive apd pro- duty has state a valid aim avowed cases, and this for the *5 life, tecting prenatal long as that such so of the primary purpose accomplishing the with that of an does not conflict of hu- preservation legislative intent—the right privacy. This is so individual’s to man life. potential life is because a future human present conception moment of from the argument, principal Aside from his general obliga- state’s interest and pre for a that in an action appellee states protect tion to life thus extends to death, birth should be live natally induced life. is in point as a cut-off because utilized depend to every in appropriate such Appellee also contends that there wrongful quasi-criminal punitive, why of policy exist several reasons a cause argument this statute. We feel that death prereq not exist without the should illogical to it is persuasive is not because include: uisite of live birth. These reasons depend on death liability to whether allow claims; possibility of fraudulent before or after injury from fatal occurred causation; problem proof of proposi live Reconciliation birth. possi fear As to the of double recoveries. after live birth tion that if death occurred claims, bility fraudulent we believe exists, if but death oc a cause of action having in plaintiff the interest of the of action does prior thereto a cause curs outweighs the theoreti cause of action far exist, best. extremely difficult at not possibility recognition cal of this inconsistency is best ex proposition’s The open to fraudulent of action will the door involving emplified in the situation problem litigation. Concerning of cau wrongfully injured death of twins are who sation, argu are not persuaded we the. recovery during pregnancy. to remedy for appellee ment of that a clear dies, alive, subsequently the one born who injustice because a an should be denied to the stillborn who to wrong clearly prone -proof. is not injured the same accident ob light tech think of modern medical Ashmore, viously ludicrous. Stidam v. nology, proof of death can of the cause 431, 434, Op.2d App. Ohio Ohio es expert made witnesses. Under our cases, To bal- tablished law in these a verdict 167 N.E.2d eight and one-half parents that the an not testimony would expert based on stillborn fetus entitled month old are or con- guesswork speculation, pure rest on wrongful death maintain an action for accept the rate, once we anyAt jecture. of the hu- child. potential is a a fetus premise basic feel we injury, of the at the time life man Reversed and remanded. resulting from rights that the substantive regard- protected, must be BLOODWORTH, HEFLIN, J.,C. difficulties. practical inherent less of FAULKNER, JJ., MADDOX and sup- feel that Therefore, we do causation difficulty proof posed MERRILL, COLEMAN, HARWOOD action. bringing bar to should be a McCALL, JJ., dissent. proving caus- fact, difficulty, any, if le- prompt greater should al connection MERRILL, (dissenting) : Justice rather than affording remedy nience sets, majority opinion bur- The for the first Moreover, since the denying justice. Alabama, any in- plaintiff, time different standards is on the proof den of causation death proof of and homicide statutes. difficulty of creased defend- pervad- The states that “due to the the benefit should inure to public ing purpose of our ant. prevent homicide which is through punishment culpable party argument Finally, appellee’s damages by and the determination of ref- al action would of such an

the allowance quality erence tortious possibility of a double plaintiff low the again preroga- extending has since there recovery is merit without done in Huskey tive was toWolfe us, injury been, before in the situation parents eight hold that the of an and one- for which the persons to two different half month old stillborn fetus are entitled answer; held to should be tortfeasor maintain an action for the due the relief namely, compensatory death of the child.” inju physical and mental for her plaintiff *6 plain ries, punitive relief due holding I do not as an see “exten- right maintain through her to tiff derived State, Huskey sion” of 289 Ala. for the loss death action So.2d and Wolfe v. her minor child. but a jump tremendous pronounced previous and a reversal of the determinative, note Though not here holdings appellate of our courts. 22, 24, Code of Ala- passing that Tit. § Huskey although I did concurred I pre- (Recomp. 1958), which bama participate Wolfe, agree I with its reg- must scribes that certificates holding. important present But fact fetus for all fetal deaths where istered those two cases is In Huskey, absent here. beyond twentieth has advanced to or the child “was born In Wolfe, alive.” de- expressive of a is uterogestation, week of pleadings, cided on the complaint public in fetal deaths. showed that “the child born alive shortly pre- thereafter died because of the pervading due to the Consequently, injury.” natal wrongful death stat public purpose of our Here, through the fetal ute, prevent child was Our homicide stillborn. party and the be- culpable Tit. punishment of the gins “When the death of damages by reference a minor child is determination * * act, we are caused the tortious quality minor, as The stillborn had judicial prerogative fetus was not extending out again not lived after birth and to hold no cause was done Wolfe quoted law is accrued to The same it. (Second) restatement from Wolfe Thomas E. POWELL

Torts, 174-182, pp. follows: “ tortiously One who causes harm ‘(1) REPUBLIC NATIONAL LIFE INSUR- subject liability to an unborn child ANCE et al. CO. it is the child for harm if born SC 844. alive. Supreme Court of Alabama. alive, If the child is not born “‘(2) Sept. 12, 1974. liability applicable there is unless the no provides.’ wrongful death statute so

Tent.Draft, supra, ALI at 174. See

Proceedings, (1970).” 371-377 so

Our homicide statutes have been con- Singleton

strued in two decisions.

State, Harwood, Appeals, per J.,

Court of said:

“In cases addi- infanticide an.element required

tional elements of the

usual homicide case must be established doubt, beyond a the State reasonable

namely that the deceased babe was born

alive, being axiomatic that one cannot something already Rough

kill dead. applied by

rule of thumb tests were cases, question

earlier the via-

bility seems of the child revolved

around whether the child breathed and independent

had a circulation its (Citations omitted.)”

mother. case, phase

On this the court said

“it is our conclusion that the met State proof

burden of cast it to establish present the infant case was also, State, 24

born alive.” See Weaver v. *7 132So. 706. person

To convict a for murder or man-

slaughter newly baby, born evi- must

dence show that it was born alive. Yet, majority opinion holds that a suit III, Dothan, Ramsey, ap- Richard H. brought can be where the child was not pellant. born under death stat- alive Lee, III, Dothan, for appel- William L. ute, purposes which has as one of its lees. prevention of homicide. BLOODWORTH, Justice. respectfully I dissent.

Appellant (plaintiff below), Thomas E. COLEMAN, Powell, appeals HARWOOD and Mc- from the order of the Cir- CALL, grant- JJ., County cuit Court of Houston