Santiago M. LEAL et ux., Appellants, v. C. C. PITTS SAND AND GRAVEL, INC., et al., Appellees.
No. 14558.
Court of Civil Appeals of Texas. San Antonio.
March 22, 1967.
Rehearing Denied April 12, 1967.
413 S.W.2d 825
Appellant says frankly that there are no Texas cases in regard to illusory trusts and that she has found none in any other jurisdictions where the community property law prevails. We have already held that by the instrument in question appellant‘s husband attempted to make testamentary disposition of appellant‘s community interest in their property, which he had no right to do; and that the instrument did not convey a gift inter vivos. In view of such holdings we deem it unnecessary to pass on other aspects of the trust agreement, and we shall not do so.
Appellant and appellees are in agreement that there are no fact issues to be resolved in this case. Both sides filed motions for summary judgment. We have concluded that the motion of appellant should have been sustained and that of appellees should have been overruled, and that this court should render judgment accordingly. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400; Lilac Variety, Inc. v. Dallas Texas Co., 383 S.W.2d 193, 196, Tex.Civ.App., 1964, writ ref. n. r. e.
The judgment of the trial court is reversed and judgment is here rendered in favor of appellant Mrs. Viola Walker Marshall that she be awarded title to an undivided one-half interest in and to the 2,562 shares in the corpus of the alleged trust, as of the date of the death of W. E. Marshall together with one-half of the cash received as dividends on such stock since the date of the death of W. E. Marshall.
In reversing the judgment of the trial court and rendering judgment here we make no determination and no comment as to the proper disposition of the other one-half of the corpus and income of the trust estate—that is, the community interest of W. E. Marshall as distinguished from the community interest of the appellant Mrs. Viola Walker Marshall.
Reversed and rendered.
Beckmann, Stanard, Wood & Vance, John H. Wood, Jr., Hugh P. Shovlin, San Antonio, for appellees.
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 (
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,1a and some authorities
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.
KLINGEMAN, Justice.
I concur in the foregoing opinion for the reason that I accept and believe that lower courts are bound by the decisions of the Supreme Court, and it is our duty as an intermediate court to follow the decisions of our Supreme Court. 15 Tex.Jur.2d Courts § 137 (1960), and cases thereunder cited. However, in view of the overwhelming trend in other jurisdictions away from the holding in Magnolia Coca Cola Bottling Co. v. Jordan, since that decision by our Supreme Court in 1935, I feel confident that the Supreme Court will thoroughly review the matter of liability for prenatal injuries.
CADENA, Justice.
I would hold that plaintiffs’ petition, the contents of which are summarized in the opinion of the Chief Justice, states a cause
The rule denying recovery for prenatal injuries to a child subsequently born alive emerged from the judicial womb in 1884 in Dietrich v. Inhabitants of Northhampton, 138 Mass. 14, 52 Am.Rep. 242 (1884), although there is some dispute as to whether the child in that case was actually born alive.2 It is apparent that the principal underpinning for the decision in Dietrich was the notion that a child in its mother‘s womb is merely a part of the mother and has no separate existence. This rationale is somewhat surprising, since at the time Dietrich was decided, both medical science and religion considered that life begins at conception,3 and, even in law, the jurisprudential concept that life begins only at birth was not consistently followed in the area of property law,4 nor, according to some authorities, in the administration of the criminal law.5
The Dietrich doctrine was followed with such singular unanimity that when the Texas Supreme Court considered the problem in 1935 in Magnolia Coca Cola Bottling Co. v. Jordan it could say, “We have found no decision (and the parties have cited none) by an appellate court of final jurisdiction holding that damages for prenatal injury may be recovered either by the injured child, if it is born and lives or by its beneficiaries in the event of its death from such injury.” 6
In following what was then the unanimous American rule denying recovery in cases of this nature, the Court in Magnolia pointed out that the decisions were based on three reasons: (1) lack of authority; (2) practical inconvenience and possible injustice; and (3) lack of a human being in esse to whom defendant owed a duty.7
As is pointed out in the opinion of the Chief Justice herein, every court which has considered the problem in the last two decades has allowed recovery. Prior decisions denying recovery have been overruled by every court which has reconsidered the problem, so that today the no-recovery rule represents the last expression of judicial attitude only in Texas, Rhode Island and Alabama.8
Considerations of difficulty of proof and fear of creating opportunities for the fabrication of false claims seemingly played an important part in the Magnolia decision.9 Again, every decision within the past two decades has rejected the difficulty of proof and the possibility of fraudulent claims as adequate reasons for the denial of a remedy. Questions of causation and reasonable certainty which may arise in prenatal in
In adopting the biologically erroneous11 legal theory which denies separate existence to the fetus, the Court in Magnolia, while expressing doubt as to the propriety of supporting a rule of civil law by analogy to the criminal law, called attention to the fact that in Texas, by statute, in homicide cases “the person upon whom the homicide is alleged to have been committed must be in existence by actual birth.” 12 If we are to resort to the criminal law for guidelines in cases involving civil liability for prenatal injuries, it would seem more appropriate to direct our attention to those statutes which deal specifically with injuries to an unborn child. Our statute defines abortion in terms of the destruction of the “life” of the fetus.13 Another statute makes it unlawful to destroy, before actual birth, “the life in a child in a state of being born.” 14 These statutes clearly announce that the protection of the fetus and of its right to life is a part of the public policy of our state.
Our Supreme Court in its Magnolia opinion advanced a further reason for denying recovery for prenatal injuries. It invoked that fictitious character of the common law, the ordinary prudent man, asserting that such a man reckons life from the time of birth, that his “conscious care and solicitude are for the expectant mother and not for the unborn child apart from her,” and that his “obligations and his liability in damages for his acts should be measured and determined from his viewpoint.”15
The Court‘s basic assumption concerning the solicitude showered upon a woman quick with child is not factually accurate. In view of society‘s strong interest in the propagation of the human race, the conscious care and solicitude which the ordinary prudent man extends to the expectant mother cannot be said to reflect solely a concern for her welfare apart from that of the unborn child. From the moment that it is known that she is with child, her concern, as well as that of her husband and the attending physician, is to insure that the period of gestation will culminate in the normal birth of a healthy child.
The Magnolia opinion declares that decisions which “protect unborn children in property and property rights but undertake by the indulgence of a fiction of existence to save to the child property which in fairness belongs to it.” 16 In view of the fact that the separate existence of the unborn child was, in 1935, accepted by all except jurists, it is somewhat surprising that the Court should brush this aside by applying to this medical fact that Benthamite epithet, “fiction.” It is the purely legalistic concept that the unborn child is but a part of its mother, which is contrary to scientific fact and common sense.16a
It is true that the existence of a duty, and the breach of such duty, constitute the foundation of liability in negligence law. But this does not compel the conclusion that the person to whom the duty is owed must be known or even knowable.17 It is doubtful that anyone would seriously argue that the pharmacist who negligently prepares a drug today should be allowed to escape liability for the death of a child, born next month, to whom the medicine was administered, on the ground that he owed no duty to the child who was unborn at the time the negligent act was committed.18
It cannot be denied that, generally, it is the duty of a Court of Civil Appeals to follow the decisions of our Supreme Court, and that mere dissatisfaction with a rule announced by the Supreme Court can in no way dilute the authoritative nature of the pronouncements of that supreme tribunal. But where the rule is based on erroneous assumptions of fact, where every court which has considered the problem in the last score of years has rejected the assumptions which form the basis for the rule, and where there is every reason to believe that our Supreme Court, on reconsideration of the problem in the light of medical knowledge and the present state of judicial authority,19 will overturn its prior decision, it cannot be persuasively argued that it is the duty of a Court of Civil Appeals to blindly write an opinion which it feels certain will be reversed.20