*1 380 Mich 160. Oi, O M- CITY POWERS v. OF TROY.
Decision of Court. Summary Judgment 1. Death — —Stillborn Child. Summary judgment defendants action under death act negligently administratrix of the estate of one who was injured en ventre subsequently sa mere and stillborn is af- (CL 1948, seq.). firmed et C91.581 §
Separate Opinion. J., Dethmers, Kelly, O’Hara, O. JJ. Adams, Summary Judgment 2. Death — —Stillborn Child. judgment Summary in action under death aet for defendants negligently administratrix the estate one who was injured subsequently held, en ventre mere and sa stillborn being proper, meaning person since such a is not a within the (CL 1948, seq.). death act 691.581 et § [26] [33, [34] [8] [10] [14-18] [19] [6, [25] [23, [40] [37] [38, [4] [5, [20-24, 27-32, [1] [2, 3, 9, 12, 7] 11] 36] 1256. 50 Am 1256. 30 Am 24] 5 Am Jur §§ Am Jur '50 Am 22 Am Jur 1 Am Jur 22 Am Jur 2d, Death 16 Am 50 Am 340-343. 22 Am Jur 58 Am 22 Am Jur 22 Am Jur 22 Am Jur Am Jur, Intoxicating Liquors Jur, Jur Jur, Jur, 13] References Jur 35] 2d, Jur, Statutes 2d, Appeal 2d, 2d, 2d, 2d, Statutes Statutes Prenatal Abortion 2d, Prenatal 2d, 2d, 2d, Death Death Death Constitutional Law 101 Workmen’s Death Death Death Death § § 502 et § §§ § § § injury 22 et § 1. 488 § injury § §§ §§ 2 et et Compensation 123. Points et et Error 8 seq. 12-17, seq. seq. 218, 249, seq. seq. as seq. § 123, 135, ground 525 ground § in Headnotes 853: et 250. seq. et § 211. Am41 seq. action. action. et seq. Jur, Pleading 27 27 ALR2d ALR2d Tboy. Í9é8] n VD Powees tH tH Child —Abortion. 3. Same —Fetal theological ease, Court, not consider in death act does philosophical status child in the context laws fetal relating (CL 1948, seq.). et to abortion 691.S81 *2 Intoxicating Liquors Dramshop Act. 4. — support dramshop is the essence the action under the Loss of of 1966, 436.H2). (CLB act § Wrongful Death. 5. Death — Wrongful person qua death a is the sine non under death of (CL 1948, seq.). 691.581 et act § Legislature—Person. 6. Same — “Person,” wrongful act, as used in the was used in its ordinary, generally accepted meaning at the time of (PA 1848, 88). enactment No op as of Time 7. Statutes —’Construction Enactment. light The construction a statute must be made in the cir- of of existing cumstances at enactment, the date its not in the of light subsequent developments. of and 8. Same —Words Phrases. ordinary Words a statute are to be taleen signification m their of import. and 9. Death —Person—Petal Child. “person,” ordinary signification The word in Us in' 1848 when wrongful enacted, .the death act was did not include the con- cept (PA a 38). child No of fetal 10. Same —Common Law. wrongful Cause action death did not exist at common of law. 11. Same —Statutes—Common Law. wrongful derogation death act is a statute in the com- of (CL 1948, mon lato seq.). 691.851 et §
Separate Opinion.
Brennan, Damages—Pleading—Speculation. 12. Death — Complaint in alleged action under the death act which parents plaintiff’s decedent, a stillborn of infant injured claimed to have been while Diere, en ventre sa had deprived possible been probable monetary and contributions of which would have services child, the child’s of of been age speculation (cid:127)pure held, them in their old rendered specific circumstances and wnusual some absence
in the (CL parents 691.581 part dependency § on the seq.). et op Companionship Society Damages—Mutual 13. Same — Child. society companion- Damages deprivation the mutual wrong- alleged complaint child, under the ship filed child, stillborn estate administratrix death act ful injured mere, held, while ventre sa to have been en claimed (CL 1948, thereby pecuniary 691- loss claimed not to have seq.). et .581 Pecuniary. 14. Words and Phrases — money, consisting exacted pecuniary word means given money. Pecuniary—Adjectives—Nouns. 15.' Same — adjective pecuniary is an and since The word function adjective modify noun, no a noun so an modified of longer *3 meaning modi- the universal had when not so has fied. Injury. Pecuniary
16. Death — wrongful in the injury, as the term is used pecuniary A injury money act, (CL in 691- is an that is measured § seq.). et .581 Damages Pecuniary Injury. 17. — distinguishes injury thing pecuniary a loss or from injury nonpecuniary injury nature a loss or is the the of regarded by injuries persons such as it is who suffer itself generally. Injury Companionship. Pecuniary
18. Death- — — bought commodity generally persons Companionship is not a of State; hence, the sold citizens this loss it should of of injury pecuniary as a or loss the not be considered under seq.). (CL et death act 691.581 § Lipe. Pecuniary Notice — Loss —Human 19. Evidence —Judicial people is talcen that do not measure human Judicial notice Ufe regard money, loss human as a mere terms nor of of life pecuniary loss. Powers Separate Opinion.
Souris, J. Injuries. Negligence 20. —Prenatal right damages a child horn alive to recover negligently of for prenatal injuries, yet recognized has not been inflicted this State. Negligence—Prenatal Injuries 21. Death —Death Act — —Still- birth. Holding that a stillborn child’s administratrix can sue under wrongful damages negligently the death act for for inflicted prenatal injuries stillbirth, premature which cause (CL seq.). 691.581 et § 22. Infants —Fetus En Yentre Sa Mere —Stillbirth. Courts have not hesitated to consider in esse en ventre fetus sa whenever mere to do so would be to child beneficial alive, born but when a stillbirth results there is no live child whose the courts can act. for benefit Damages op Companionship op 23. —Torts—Loss Stillborn Child. yet parents may The court damages has not held that recover companionship loss child, their stillborn for of actions, common-law tort but points trend case law way development toward the a more realistic future damages measure parents, recoverable and this development preferable adding to the law the fiction wrongful provides remedy death act benefit (CL 1948, seq.). stillborn child 691.581 et
Separate Opinion.
Black, Damages op Companionship Wrong- —Loss —Probate Code — pul Death Act. probate The interconnected code and death acts have by judicial provide damages been amended decision to companionship loss and distribution alleged persons survivors in no who or actual sense were *4 dependents (CL 1948, who were 691.581, the decedent §§ of 691.582, 702.115). Judges 25. —Statute—Amendment—Constitutional Law. tJudges they violate the law when vote to amend statute they pronounce dare not unconstitutional. n 160. Wrongful Death —Action.
26.Death — Toeing only wrongful comes into death action A cause for of 691.581, (CL 1948, 691- death occurred §§ the claimed when Judgment Decedent—Dependent. Summary — 27. Same — under death act Summary judgment action for defendants negligently one who was Toy the estate administratrix of of subsequently held, stillborn injured mere and en sa ventre recovery and distribution plaintiff’s cause proper, since for arose, there was no because “pecuniary” never of unitary meaning “dependent” within the and no “decedent” n act and a section statutes, the death an amendment 108.115). seq., probate (CL 691.581 et § code § Statutes —Fetus—Person. 28. ' within “person” aor “decedent” deemed a A cannot be fetus wrongful death act probate code and our interconnected 691.581, 691.588,108.115). (CL §§ Opinion.
Dissenting Kavanagh, T. M. Wrongful Act —Person. Death 29.Death — within, meaning person is a 6-month-old A fetus (CL 1948, seq.). et 691.581 act § Dramshop 30., Act. Child — Infants —Unborn bring an person to action under is a entitled An unborn child Michigan 1961, 486.88). (CLS dramshop act Bn Mere —Construction. Same —Child Ventre Sa 31. construction, purposes mere, all A child en sa ventre for the child’s be would considered as child esse if n sobe considered. benefit Injury Ventre Sa En Children — Same —Posthumous While 32. n . Mere. Posthumous n living the death at considered children are injury or loss parents, children sue their and such sustained while ventre sa mere. en Compensation Parent. —Death oe Same —Workmen’s statutes, children, compensation under workmen’s- Posthumous n due compensation as. are entitled result parent. aof *5 City PowBRS Law —Abortion. Sa Mere —Criminal Ventee En Same —Child 34. long has teen legal sa mere en ventre existence A child’s statutes. other cri/nvinal recognized and in abortion in Womb. 35. Same —Evidence—Child injury proximate to a proof cause child difficulty The of of of deny recovery in no reason to womb is the mother’s damages. proceeding to recover — — Compensation — Law Criminal Workmen’s Statutes 36. Person. be n accorded its ordinary signification “person” is to term The given employed legislatively the same construction and when given Michigan Supreme it in workmen’s com- Court has cases, law, cases, abortion pensation criminal .descent damage cases, cases, property in- and civil distribution of cluding statute, is, dramshop to include- a .from fetus conception. time of -Language—Construction. 37.' Same — language when receive identical construction Identical should sections the same statute. found different of Wrongful Purpose Death Act. of 38. Death — damages right notwith- action death act accords a injured, standing person and makes no birth distinction as to time death whether before after (CL 1948', seq.j. et 691.581 § Purpose of Death Act —Torts. 39. Same — put prime purpose act was to an end to the death cpmmon-law acts killed rather whose rule tort-feasors liability (CL 1948, injured escape' than their victims would seq.j. et 691.581 § 40. Same —Death Act —Construction. recovery designed permit even 'The death act was after not be death and a strained construction the act should adopted (CL 1948, seq.j. purpose et its 691.581 defeat Lésin-
Appeal 2, from Division Appeals, Court JJ., affirming T. G-. J., Kavanagii Quinn, C. ski, Oc- Ziem Oakland, (Frederick C.), J. Submitted 51,637.) No. tober 1967. No. Docket (Calendar 7, Decided March 1968. Micb affirmed. App
Complaint by Hazel L. Powers, administratrix of Baby Boy against estate of Powers, deceased, Troy, Michigan corporation, and Alex Ventittelli under the death act. Plaintiff injured claimed decedent was en ventre sa mere when injured the mother was caused in an automobile collision *6 by defendant Ventittelli, later was still- summary judgment born. Defendants’ motion for granted. Judgment by was Ap- affirmed Court of peals. appeals. Plaintiff Affirmed. Majoros, Earrigan
Cicinelli, Mossner, & Alexan- plaintiff. der, for Patterson,
Patterson Barrett, & Whitfield, Mani- (Robert counsel), White Waddell, G. Icoff defendants. (for affirmance). J. This case involves an O’Hara,
interpretation Michigan wrongful of the death act.1 Specifically, question meaning is the of the word “person” in the first sentence of the statute: person injuries “Whenever death of a re- sulting wrongful death, shall be caused act * * * every person then and in case, who, corporation or which would have been if liable, death had not ensued, shall be liable to an action damages.” (Emphasis supplied.) person
In this case said to be involved was a male child 6-month-old en ventre sa mere. The child n wasstillborn. The question wrongful of the act proximate cause of the stillbirth is not in issue. question posed by appellant accepted The sole by appellee is: seq. (Stat 691.581 et GLS Ann Supp 1959 Cum § 27.711 § seq.). See, currently,
et 600.2922, CLS as amended § PA (Stat 27A.2922). Supp No 146 Ann 1968 Cum Troy*. Powers by O’Haka, negligently injured “Is an unborn child which is subsequently 'person’ defendant and stillborn a meaning Michigan’s wrongful within the act?” make We clear at the outset that we are not here considering theological, philosophical nor status of a relating fetal child the context of laws strictly abortion. We confine ourselves to the mean- ing “person” wrongful of a within the death act. assigned any signatory Justice, and Justice expressly they hereto, express limit the views here interpretation to the of the statute which is the sub- ject judicial construction. probate county appointed court for Oakland
an administratrix for the estate stillborn child. By that administratrix a suit was started in the cir- county cuit court for the same under the prior death act. Defendant to answer moved for summary judgment. judge The trial held: baby boy gestation “A viable in its sixth month of *7 negligently injured by which is a defendant and subsequently 'person’ stillborn not a within the meaning Michigan’s wrongful death act.” Appeals holding The Court of affirmed. Its was: authority propo- we “Therefore, while find for the appellant, holding by sition of we are bound the supra, legislature Newman,2 the intent the under Michigan wrongful act, and the clear mean- ing 'person’ of the term 4 Mich as used therein.” App 577. granted Appellant urges principal
We
leave.
arguments.
it is claimed that Newman was
First,
by implication,
explicitly,
by
if not
LaBlue
overruled
Specker (1960),
358Mich
if
Second,
558.
Newman
not
LaBlue,
has
been
we
so
overruled
should do
Detroit
(1937),
Newman v.
concept part wrong of the “no without remedy” proposition.3 a per
Appellee, premises argument contra, his on the view that to a traditional hold fetal child our under “person” legal judi death-act cially be a we, in effect, amend whichhas statute been construed since years ago its over hundred to exclude enactment by appellant. cause of action contended for argument is advanced that the construction asked appellant part growth is no of a of the common law continuing efficacy, so vital to its but rather that Camp our death act is a lineal descendant of Lord derogation bell’s act and inis law, the common gives is the statute which the cause of action, privileged and that the courts not are to create a guise new cause of action under the in liberal terpretation. argument Additional is made to the point only that authorities not divide on the issue presented, here but subdivide on the difference be right negligently injured tween of viable fetus during gestation but born alive, one stillborn. address ourselves first
We
to the contention that
supra,
LaBlue,
overruled Newman.
do
so
We
LaBlue
First,
read LaBlue.
not an
was
action as-
under
death act. The action
serted.
“dramshop”
on
so-called
act4
reason
.was based
alleged illegal
liquor
of an
sale of
to a minor. That
*8
county brought by
parents
A suit
iu
as
Oakland
distinguished
of the still
born
from the suit
the mother as an .ad-
child
impends
county
in
Oakland
circuit- court.
ministratrix
1956, 436.22
Ann
(Stat
18.993).
1957 Rev
4 CLS
§
PowERS
O’Hara,
acknowledged
allegedly,
prior
death, had
Ms
minor,
to
to an unwed
of a child to he born
the father
he was
engaged. Conception was
to whom he was
female
place
alleged
of 1956.
have taken
June
August
killed on
1956.
was
minor father
paternity
made
have been
must then
of
declaration
was
on March
The child
born
those
between
dates.
theory
plaintiff’s
that the child lost
It
1957. was
8,
the
support
father.
the self-declared and betrothed
during
injury
pregnancy occurred.
to the mother
No
period
gestation
not
in the
was
The fetal child
injury
injured
fetal
the
closer to the
child
in the sense of
family of
LaBlue
cases
case.
in this
dependent
posthumous
recognizing
child as a
a
dramshop
purposes. Under the
act loss
inheritance
support
action.
is the essence of the
Under
person
wrongful
a
which
act
death
it is
death
qua
reject
non.
the contention that
sine
the
LaBlue
implication.
We
expressly
Newman either
overruled
policy” argument.
“public
we consider the
Next,
upon,
express
upon
nor
ourselves
it,
doWe
argument.
“majority
do
Neither
wo distin
view”
assertibility
guish
of action
of cause
based
between
injury
to a child
dies and
útero which has survived birth
on
which is
Rather we
and later
one
stillborn.
squarely upon
fact that at the
our decision
rest
passed
legisla
our
act was
time
ordinary, gener
“person”
term
used the
its
ture
meaning
ally accepted
at that time. Such has been
statutory
principle
con
a cardinal
and remains
legislative intent:
to ascertain
struction
construing
are to construe
statute,
“In
we
existing
light
at
date
in the
of the circumstances
subsequent
light
de-
not in the
of its enactment,
Wayne
velopments.”
County Board
Road Com-
Wayne County
293 Mich
Cleric,
missioners v.
*9
170
This has been the uniform of this Court beginning (1844), Doug with Green v. Graves (Mich) p 351, where the Court said at 354: “The words of statute are to he taken their ordinary signification import.” “person”
We are not ordinary convinced that in its signification passed in 1848 when our death act was concept included the of a fetal child. It should he emphasized noted and that we deal here, not with a cause of action which existed at common law. We question do of broadening not face here the the base recovery already recognized in an action at com- mon derogation law. We deal with a statute of the common law. agree reasoning
We are constrained to with the supreme Hogan of the court of Tennessee in v. Mc (1958), (319 221). Daniel 204 Tenn 235 SW2d considering, stantially question, the same under statute sub (pp
the same ours, as said Court 245): ambiguity
“There is no in our statute. We must consider it as it written, is Only legislature we as would have it. has au- thority legal rights to create and interests. It re- right plaintiffs sults that no action, seek brought legislative to assert, can be until there authority it.” plain
Considering import “person” of the word at the time of enactment of our statute and its interpretation through uniform years, we feel obligated “ordinary signifi- to accord to the term its legislatively employed. cation” when Powbes O’Hara, J. Appeals affirming the Court The order judgment entry summary defendants to the defendants. affirmed. Costs Kelly J., C. JJ., con- Adams, Dethmers, O’Hara, with curred (for affirmance). This case of
BreNNAN, J. *10 Wycko absurdum the reductio ad of v. is Powers Having erroneously (1960), 361 Gnodtke Mich 331. Wycko being, like a or in that human horse ruled a greenback in a value to he measured mule, has ex- with an this Court now confronted dollars, being. As very human ease of a short-lived treme premise reduced when an erroneous cases, in most would now extreme, our Court to its absurd most Wycko by changing confessing the error of avoid the subject. holding by compound error now our
"Wewould jurispruden- against great weight American the of injury injury at authority prenatal is no tial that a plaintiff time at the exist all didn’t because the reasoning, illogical By will happened. we horribly day or say scarred deformed a man, some to malpractice who de- through of the obstetrician the light day, on the scar that of him into livered legal in- fiction, an cruelest is, forehead his jury his mother. up facing recent errors to our an effort to avoid
In Reisig3, with Wycko, flirt we Currie1, Heider2, City opinion Newman v. branding unreasoned precedent, binding and Detroit4 as an established of [1] [2] [3] Heider v. Reisig Currie v. Newman y. Klusendorf Fiting Michigan City (1965), Sugar Detroit (1965), [375] Company (1965), Mich (1937), 281 Mich 519. 440. Mich 60. [375] 490. Micii
Opinion by Brennan, overruling well-reasoned at time while the same Railway opinion in Co.5 Tunnicliffe much ex Detroit without held, Newman v. planation, by law or no action at common that there is pre recovery statute day injuries. natal Newman is law some bad and overruling should But the should be overruled. r living brought by proper in a eithe case, come plaintiff alleges injury him he was an while who personal yet brought by the mother’s womb his representative death was caused of a whose decedent, prenatal injury, on account of whose pecuniary This death actual losses can be shown. Powers is not instant case of such case. complaint alleges in Powers, case of this . parents damages, paragraph way “the possible deprived of the child have been said monetary probable child; of said contributions they deprived of the services likewise have been particularly have services which would child, said age; further, in their old to them rendered been they society deprived mutual have been *11 respective during companionship their child said always Judged pecuniary loss had as lifetimes.” Wycko, allegations judged prior these do to been the death act. action under not a cause of state Monetary in these of a minor child contributions presumed, are serv and neither not to times are be age. parents in their old rendered to to be ices the absence of specific unusual circum some and parents, part dependency on of the stances of inability perhaps have other their to with combined damages for such the fact, if were' children, such purest are an infant decedent, in the case of items complaint speculation. further claims The Bay (1894), 102 R. Co. Cities Consolidated Tunnicliffe PowERS Brennan, society companion- deprivation of the mutual ship culture, child. In a humane civilized of the thing pecuniary a is not a loss. such money; consisting pecuniary in The word means given money. pecuniary is or in The exacted word of an adjective adjective. an the function to It is modify noun no modified, the a noun. so When meaning longer when which it the universal has has pecuniary injury is to a not so modified. Thus is injury. distinguished nonpecuniary A a from he pecuniary money. injury in is that measured one is injury nonpecuniary that is not measured A is one money question money. is a not whether The injury. can attached or ascribed to value he Wycko genius suggest majority of of that the The capable, left alone, is where the common law ascertaining damages an- even sorrow and for the capacity guish the common caused death. This hardly genius. It more called would be law properly be should the learned as fiction. What
described Wycko recognizing writing really Justice was jury place money on a a value if be told to that, process speculation, anything, they con- can they jecture, sympathy are told to do. do what agree capacity jury an on award of the The distinguishes pecuniary thing hardly losses that injuries. injuries nonpecuniary or or from losses distinguishes thing nature is the the two that persons regarded by injury who itself it is of the injuries generally. suffer neighbor dejected that he farmer his a tells Thus, would horse, of a but he the loss $50 has suffered neighbor $12,000 wife or has lost tell he though Wycko majority in tell us, son. $7,000 by' judicial authority, finding without citation sociological jury, handbooks, reference even open companionship on the market. is obtainable *12 Lansing or even Arbor, Ann If it so be Brennan, commodity certain sections of it not a Detroit, bought generally and sold the citizens of Mich igan. Wyckomajority wrongly money assumed that only verity
is the a life, for it concluded that assigns monetary rule law which no for the value thereby assigns loss of a human life it no value seguitur, In whatsoever. then a classic non the Court says, delicacy prevent “This kind of would the the starving distribution of food to the because sight hunger sickening.” is so truth, of course, society greater which values human life in terms money than does not count the cost when it feeds starving. Those, so imbued with adulation of shillings they place money and shekels that would surely weigh value on the loss of a human life, would feeding starving plac the economic wisdom of — ing in the one scale the food, value of the the cost of transportation, expense and the distribution, monetary in the other scale, the value of the human through lives be lost starvation.
Fortunately, yet society our has not come to the stage enlightened Wyclco barbarity to which the majority would lead us. We still read of total com- munity mobilization to rescue little child from the readily bottom of the well, and the can take Court judicial people yet notice that our not, least, do at measure human life in terms of dollars and cents, nor regard pecuniary the loss of human life as a mere loss.
Having reasoning mucky founded its on bed Wycko majority rock of dollar deification, as past legislatures sumed away have shied courts damages allowing companion from loss ship of a deceased for the reason that was difficult money to arrive at for the loss human apparently, majority life. in It did not occur, to the Wycko people that the voice of the in the heard *13 Powees by Brennan, Opinion J. legislative ball their wise and on the courts forebears money did not believe that the assessment dam- ages right prudent for the human loss of life was or directed to the common welfare. begins assumption
If one with the all well- being well-being, security is economic that all security, happiness economic and that all is economic prosperity, imagine it would indeed be difficult to why legislature or a court would eschew the assess- money damages ment of for the of a But loss life. society greater recog- in- a where other values are legislative policy nized, the wisdom of the is better understood. stronger
Do we indeed become a braver, and more courageous people and more noble when our citizens are invited to the office the claims examiner or courtroom, there to recover hard cold cash by sincerity an amount which will be measured Wycko keening? of their Does decision serve the cause of mental health, or contribute to the personal well-being good adjustment and of our people? Wycko Or does the decision and others growing patho- like it contribute to the multitude litigants spurious whose causes and unreasonable congest delay demands our courts, our dockets people? Wycko vex our Does the decision mean that parents rich with substantial in their investments upbringing children’s education will recover upon poor more the death of their than children parents whose children have been forced economic adversity support age help to leave school at the of 16 large impoverished family? or an might ques- give
Whatever answer one to these questions good tions, the fact that the can be asked in faith opinion is evidence that there is a difference of upon valuing the wisdom of human life in terms of dollars and cents. And if there be a difference of by Brennan,
opinion upon subject,' tbe is, this Court its con- obligated policy stitutional oath, to effectuate the legislature. legis- determination made pecuniary lative line has been drawn at loss and pecuniary injury. legislature placed has recovery pecuniary loss on a level with the ad- ministration of matter. It decedent’s estate. is a business
It intended to abe substitute for. a publicly privately church funeral or a financed and endowed memorial service.
True it is, some hard-hearted survivors and lawyers past avaricious have in the and will in the employment future, of fiction and fabrication, pecuniary attempt turn an action for loss into an to improp- measure the value decedent in order erly jury sympathy. to influence the and evoke their is an abuse, This constantly and it is an abuse which needs guarded against.
to be But is no judicially solution to decree that the abuse shall be candidly indulged universal and more in. The courts ground below should be affirmed on the that the com- plaint allege pecuniary injury does not a within the meaning of the death act. to
Costs
defendants.
(for affirmance).
Soueis, J.
I concur in affirmance.
yet recognized
In
we
this State
have not
even the
right
damages
of a child born alive to recover
negligently
prenatal injuries.
inflicted
Newman v.
City
(1937),
Someday
Detroit
Mr. Justice Kavanagh, for the Court in Specker (1960), LaBlue v. 358 Mich in his 558, and opinion today, exhaustively has demonstrated courts not have hesitated to consider esse foetus en sa ventre mere whenever to do so would be bene persuasive
ficial to the child born alive. As the cases he are as involving children born alive, cites when there a stillbirth case of results, Powers, this is no child for whose live benefit the can act. courts For this reason the rationale of the cases Justice plaintiffs upon rely applicable Kavanagh is not negligent injury when the a stillbirth. It causes during past true that this decade number of courts jurisdictions, hampered in other as we are precedents recognized right Newman, like have attempted here; assert a of action such as is cause emerged a rationale but none those cases has persuades necessity for, which me of the judicial action taken those courts. of, wisdom *15 judicial persuaded I am action is that anyone injustice being, necessary to as to avoid arguendo might properly suming that we construe “person” the word include death act’s use of to our example, the child. For we are told that a stillborn very parents in this case have the child stillborn against negligent the tort-feasors to suit instituted damages. true that we it is their While recover yet parents in such common-law that not held have damages for of the loss recover actions tort companionship see Tunni- child,
of their stillborn .2922, 27A.2922). as amended by PA 1965, No 146 (Stat Ann [1968] Cum Supp 380 178 by Soueis, J. Bay (1894), R. Co. 102 e Cities Consolidated
cliff recognized that Mich. this case 624, Court right damages pain and the recover for mother’s to suffering “to some extent consideration includes injury, exclude from nature cannot and phys jury the consideration of the ical the fact that suffering mental of the mother reason and injury of such an would be more intense than (At ordinary the need not a limb.” fracture of case pretend p 630.) to believe that recover We damages, they as able such limited are Tunnicliffe suffering, currently physical are mental and Montgomery v. with the but loss; commensurate Wycko Stephan (1960), Mich v. Gnodtke 33, 359 way point (1960), our 361 Mich toward 331, development of a more measure future realistic damages in in the of the recoverable tort actions my judgment, jured parents. of de sort adding preferable velopment law of our common negligently for fiction to the law—that another still inflicted the injuries prenatal stillbirth, which result in a provides legal remedy act !2 of the child born dead the “benefit” affirmance). opin (for Until fourth Black, hope in December last, was turned 28 ion of this case might stigma we remove some of the remained that of a now elector-reduced vote bare and which, majority, on all of the Court was branded robes Fiting, 375 Mich amended the when Currie (re acts of 1939 and interconnected effective then 2 115 ferring of Act 297 and section to sections provide )1 loss of so as to of Act legal subject seliolarly of the comprehensive review Por a injury foetus, Gordon, to an unborn see arising from tortious rights Plaintiff, L 579. eauses of 63 Mich Rev The Unborn Currie Powers when 1 and in effect Sections officially 1962), (Currie Powers are cited 1960 and allegedly arose during 691.581, 115, in effect 691.582. Section CL §§ *16 City v. 179 PowERs by Black, damages companionship of such and distribution alleged or actual who in no sense were to survivors “persons dependents who were decedent.” opinion that fourth has left no that But doubt upon; only agreed can hence result of this case be separate respect this declaration of continued for proposition judges the law when the they violate pronounce they not
vote to amend statute dare unconstitutional. all
It writer that members of the seems just openly Court, us, some of should face two dis- aspects plaintiff alleged of the cause and saw (see Troy, Powers 4 missed below App 572). wrongful first if The is that a cause for being all, death arose at and that cause came into when (Coury only when the claimed death occurred Corporation, 248). The General Motors 376Mich alleged may proceed trial, is that the cause second and the may claimed be recovered and only authorised distributed, acts as if 1939 at the time same stood claimed death. blithely The Currie amendment was enacted legislation providing of first that dam face branch “pecuniary ages injury” resulting recovered being, previ from death of human often comp excluding damages ously as defined loss of anionship,2 lawfully be is—- distributed — persons dependents “only who to those were of the quotation appears said section decedent.” (4), which sub more anon. Now we have 702.115, 1948, officially CL I years, is cited as 702.115. refer same herein to of 1939.” sliall said sections 1 and and said section 115 as “the acts mutually together had to be and fitted acts conceived assembly (In re Venne dependent 1939; 1938 Venneman Estate, 368) having just man’s noted 286 Mich been handed down. As 484, legislature passed by in Currie at acts were May day, They presented 1939. were to Governor on the same day, They approved on same Dickinson June 1939. were day, on the same June gathered in pp See authorities Currie at 466-470. *17 Mich 160. Black, Opinion by J. judicial for before another demand another us (retroactive of these same acts of amendment complained course of and to 1962when the collision occurred) alleged statutory the which, of a “decedent” death provide damages by will enacted the Court, if companionship cannot for loss rationally of a fetus which of the otherwise, said, under statute be. having anyone upon dependent it not at it. Is left long plain for that insatiable demands last these legislation by continue Justices will unconstitutional appease just long to and so as 5 submit Justices them? overruling perceive I no to consider
First: reason inapposite City Mich 60. Detroit, Newman v. say and now on it, For if to overrule here we were retro- motion of the with declared exclusive activity Court September 1937, would not to that back alleged help present plaintiff. is an It statu- This tory brought for death. under action by unitary or fails the aforesaid acts and stands hand, an action Newman, on the other was authority brought alleged upon law. of the common which, if the common It was an action sustainable rep- personal to Charles L. Newman’s law, survived (CL the then survival act under resentative 14040-14060) §§ with be- the recoverable exclusively becoming part longing to and fiduciary prose- right of a to estate. decedent’s right not de- cute of action did such a common-law subsequent upon injured person’s pend proof that the injuries part was due whole or to complained enough during the de- It of. was possessed what was lifetime he cedent’s became right property right by law, ais, common injuries. personal tortiously of action for caused composed presently comes sooner this Court mentioned understand the difference between the Powers Ojiinioii by Black, right common-law right action, of action recovery “pecuniary” and distribution of dam- ages provided which statute has continuously been membership since the sooner our total will comprehend that if there Newman were no Case in fiduciary’s appeal books the due result of this necessarily would be the same.
Perhaps
elementarily
all this
be made
clear,
Michigan
quotation
first
of Rouse
Co.,
U. R.
(a
tortiously injured
Prom Rouse at 477: right personal injuries “A of action for not re- sulting injured person in the death of the survives (CL 10117), § his death 1897, and suit for his damages begun by by him be continued his personal representative after death, his with the according effect, same to the same and to rules, damages, living recover same as if he were prosecuting person. action his in Neither (CL 10427), so act, called nor PA 1905, No. right any applica- 89, affect such a of action or have pursued. tion in to the manner which it shall be In the decisions of this Court no different conclusion has been stated or intimated.”
Prom Love at 5: right property “A of action is much as as is a corporeal possession, and, act, under the survival injured person upon at vests once the inflict- ing negligent injury, upon subsequent of the and, his an death, becomes asset of estate to his be collected distributed accordance with the administra- Berger tion statutes. 21 215; Mich Jacobs, v. Power Mich 380
182 by Black, Joslyn’s Estate, Harlow, 107, 111; Mich. re Carbary R., v. Detroit U. Mich 442; (104 Railway Am 683; Co., 134 Mich Olivier 53).” Rep 3 Ann Cas St suggest lay respectfully that all of us should I ever, when, for consideration if Newman Case aside by brought here another common-law action there is injured living person prenatally in Newman’s or, injured fiduciary prenatally person Case, a of such followed birth. whose death has his manuscripts, sup- great write I Second: could We reading .pose, against Act 297 an into said assembly to authorize the re- of 1939 intent covery damages, fiduciary “pecuniary injury,” appointed attained of a which never fetus injury by the sustained on account tortious birth pregnant al- by T. M. has mother. Justice KavaNagh: pro argument ready undertaken the side searching beyond a “trend” which our borders for support that “this final conclusion his is said by a construction of the not strained should Court agree. purpose.” we indeed its Here act3 defeat by any construction of strained should We purpose. we defeat its Nor should its act defeat purpose Currie, is, an unconstitu- as done tionally de- amendment which ordered retroactive *19 “only requirement to those distribution of letes dependents decedent.” persons of the were who tour T. M. with Justice trouble KavaNagh’s ascer- embarkation not before that he did abroad is any correspond way 1939in acts of whether tain authorities out-of-state in the those considered with even have He cannot to assemble. has labored he simultaneously to the refers here our Brother that- 3 I assume au for not, look then we must he does adopted of 1939. If acts damages “pecuniary may for fiduciary holding recover thority in one; being lawfully no there to ean distribute injury” which he “dependents of the decedent.” Case no Powers this Powebs of Opinion by B£4.CK,J. say nothing looked at of of said Act to 297, section requirement specific section of Act said damages “pecuniary of which is that for recovered injury” only dependents must be distributed the decedent.
For benefit of out-of-state readers of our present indispositions appended part there applies (emphasis of said supplied by which here section 115 writer): proceeds any “Sec. settlement of proceeds wrongful cause of action death, or the judgment damages of a an recovered in action for wrongful in' death, shall be distributed such persons, manner, to such such and in amounts as hereinafter “(1) “(2) (i(3) “(4) * * * * * * * [*] * set forth: hearing petition After on the of the executor probate or administrator, shall an court enter distributing proceeds per- only order such to those dependents sons who ivere decedent of. such amounts as to said court seem fair and shall equitable considering damages the relative sustained dependents each such reason of the de- cedent’s death: Provided, however, That proceeds if pro- which are to be are distributed judgment ceeds of a recovered in a court which has provided by certificate, issued a law, be relative to the sustained each dependents, proceeds distribution of such shall, objections by any
the interested absence written thereto filed party following service notice as re- quired by this section, be ordered in accordance with such certificate.” (375 pp 485),
As Mich at Currie I duty apply simply stand for oath-bound worded they might statutes as as I read, not have written predilection legislative them for a committee. *20 Mich
Opinion by Black, alleged, recovery plaintiff’s as and canse This “pecuniary” damages, never arose distribution “dependent” no there no “decedent” and because was by and used this those nouns were known to as legislators Venneman then Court in and unitary legislators 1939; statutes who the same recovery express provision for of “reasonable made pain suffering, compensation for while con- person during undergone such deceased scious, period intervening in- time of the between the the flicting injuries and his death.” To Summarize: “person”
1. A fetus deemed a “de- cannot be unique our whereas cedent” within acts reasonably that conclusion have been drawn from some statutes of other States. All the skilled unitedly Lansing, laboring with- research clerks of possibly up could not come with drink, out food or judicially interpreted statutory pro- any out-of-state correspond which with our acts of 1939. visions prodded reason those acts were into contro- is that drafting Case, Venneman and effect versial supra, peculiar Michigan they are on account that, determination a result of Venneman’s entry then death statute and under the suit judgment plaintiff administra- for the consent father, an of the deceased husband and adult son trix, dependent though of his was father, even entitled dependent with the decedent’s to share judgment. proceeds of that consent widow (pp 377): said Venneman Court statutory notwithstand- mandate, “Because of the way dependent ing appellant is an adult in no support, upon father for he still is entitled to his amount share the distribution of the recovered. though And this true even it be admitted the son himself could no have recovered Powers *21 Opinion by Black, J. pecuniary because be could sbow no loss, and tbe person only who suffer did a loss was the widow.” any present day It should not be difficult for Michigan lawyer judge, engaged regu- or whether larly appellate in trial and work in 1939 or not, perceive both from the content of 1938 Venneman wording immediately ensuing and the of the acts legislature employed legal phrase of 1939that the “dependents of the decedent” to make sure that no again; result like Venneman should occur also that body tied 2 section of Act 297 and section 115 of together by requiring (in 2) Act 288 section probate provided by court “shall determine as representing laiu the manner in which the amount pecuniary by surviving spouse total loss suffered and next of kin shall be distributed.” opinion affecting
2. This is not to be taken as any way separately pending Mrs. Powers’ common- personal injuries law action for and such other dam- ages may may not, as at law, common be recover- by alleged able her on account of the stillbirth separate complaint. her That case doubtless will prejudge arrive here and I do not it. Currie See at 486, 487.
I vote to affirm. (dissenting).
T. M. Kavanagh, J. Plaintiff, the Baby Boy administratrix of the estate Powers, against commenced this action in the defendants county August Oakland circuit court on 28, 1964, seeking damages Michigan under death act.1 Prior to answer, defendants filed a mo- summary judgment alleging plaintiff’s tion for pleadings failed to state cause of action. After pretrial answer and conference the trial court 1 seq. (Stat 691.581 et Supp CL Ann 1959 Cum 27.711 § § seq.). See, et currently, 600.2922, CLS PA amended § (Stat No 146 Ann Supp 27 A.2922). Cum Dissenting Opinion by T. M. Kavanagh,
granted defendants’ motion for the reason that “a baby boy gestation viable in its sixth month which ** * injured negligently subsequently is stillborn is not 'person’ meaning within the Michigan’s wrongful death act.” appealed Appeals,
Plaintiff to the Court of which (4 App 572.) the trial court. Mich affirmed Plaintiff granted by on here leave this on Court December 30, 1966.
On October Hazel L. 29, 1962, Powers was involved in an with automobile accident a car driven de fendant Ventittelli and owned defendant pregnant At the time was months she with *22 child.- As a result of the accident she and her un injuries, causing born child each received serious to the child be stillborn.
(cid:127) Michigan wrongful The first sentence of the death act reads as follows: person injuries the death a “Whenever of or re- sulting by wrongful in death, shall be caused act,
neglect neglect or default, and the act, or default is (if ensued) such as would death had not have en- injured party titled the to maintain an action and damages, respect in recover then in thereof, and person every corporation the case, who, or the which would been liable, have if death not en- had damages, liable sued, shall be to an action for not- withstanding person injured, death the and although the death shall have been caused under felony.” such circumstances amount in law to (Emphasis supplied.) question sole decision this case person whether 6-month fetus old a within the meaning Michigan wrongful of the death act. rely,
Defendants as did the trial court and the Appeals, City Court of on the case of Newman v. 281 Mich Detroit, v. 187 PoweRS Kavanagh, T. M. Dissenting injuries Newman Case the suffered days prior his unborn child occurred birth he was born. The his 3 months after caused cause of action under there denied decedent’s Court simply stating overwhelm- act, survival weight liability, ing authority con- denied of (p 64): cluded that under the com- cause of action has no “Plaintiff any statute.” mon law under authority weight great Plaintiff relies on throughout presently the nation which exists Specker, although 358 Mich LaBlue v. contends that expressly January, 1960), (decided did supra, City Detroit, it did Newman overrule so by implication. supra, Speaker, deter dissent without LaBlue v. person as a an unborn child mined status Michigan bring dram- an under action entitled pointed shop that it and out the Court act.2 There pur repeatedly all that for held have other courts mere is en sa poses a child ventre of construction for the’ if it would be a child esse considered as the case It cited considered. benefit to be so child’s Rapid Inc., Transit, 152 Ohio Marion Williams ap 1051), with (87 ALR2d 10 unborn NE2d St proval. child considered was In that case an giving provision person the constitutional within injury. remedy personal person every *23 Howald, 120 Mich McLain also cited Court 279): (p said where was may not in terms do these statutes be “It harmony they with in are but ease, this cover ‘posthumous they declare rule when settled Reporter. 2 CLS Stephan, 359 Also eited with Mich 436.22 approval 33, 47. (Stat Ann 1968 Cum by Justice Talbot Smith Supp in Montgomery § 18.993).— ' " Dissenting T. M. Kavanagh, living children are considered at the death of their * * * parents.’ And it is held that such children injury sue an loss sustained en while Eng Am & ventre sa mere. 27 Enc Law, 420, and justified, say- feel these in authorities, note. We ing being though esse, that Edward McLain, en mere, at ventre sa the time of the death of the life tenant, was entitled to take under will with his older brothers and sisters.” analogized
In LaBlue the Court then between the holdings fact situation there and the of this Court and courts of other under States the workmen’s com- pensation They posthumous hold that statutes. compensation children are entitled re- due as the parent. sult of the death of a Turning holding to the in the courts field legal law, criminal the Court stated that a child’s long recognized en existence ventre sa mere had been in abortion and other criminal statutes. Michigan
The Court then how the examined Court damage and other courts construed civil or dram- shop provisions. act pointed
In LaBlue it was out that had there been change weight authority in which affected (p 570): the Newman decision. The Court said “While statement made Justice Butzebl, September decided, 1937 when this case was overwhelming weight authority was true that the liability, respect denied the situation with to the law changed considerably has since that time.” pointing changed, out that the law had Court cited which is an ALR2d annotation dealing grounds prenatal injuries. with of action for published That annotation was in 1950 and stated dealing prenatal injuries that cases with were few number authority weight and that numerical *24 189 Powees by T. M. J. Dissenting Opinion Kavanagh, wrongful death relief under the various denied a later annotation then cited statutes. The Court (published 1953) 1256 which in ALR2d found 27 quoted por supplemented 10 ALR2d, that in pointed which out the fact that annotation tion of right jurisdictions denied a to that date had 10 that injuries prenatal and 7 had allowed action of such (p 1259): annotation stated actions. The jurisdictions out of fact that 6 7 “However, years recognized past an have several in the away more from the a definite trend indicates action orthodox view.” juris- many cases from other cited then Court point change in the drastic which out
dictions (p opinion saying The LaBlue concluded law. 578): “Assuming guardian he able that would
prove LaBlue had alleged in that John declaration, his facts acknowledged that was the father he proof assuming Johnson, Deborah of damage dependency can it is clear shown, he action that a cause of exists.” resulting sophistica passage time and
With knowledge, judicial precedent and medical tion of apparent in LaBlue ab is most Court was appraisal solutely of the Newman correct in its Case considerably changed stating that the law had Smith v. Newman had been decided. See since Daley (157 497); Meier, A2d Brennan, 31 353 NJ 691); (178 App Brown, Sana v. Ill 218 NE2d 2d 187); (183 App Kneale, Sinkler v. 35 Ill 2d 425 NE2d (164 93). Pa A2d supra (decided Kneale, In the case of Sinkler v. considering September, 1960), the Court was brought Mongoloid for dam infant suit case where ages oper- negligently defendant, when while caused Dissenting Opinion by T. M. Kavaitagh:, ating bis motor vehicle, collided with the car which *25 driving. plaintiff her mother was at that time was a fetus of one month. a result of As these in- juries Mongoloid. the child claimed she was born Pennsylvania The Court there reversed an earlier showing upon case that the authorities relied were jurisdictions from cases other which that time upheld right themselves, had reversed and then of action when the child was born alive. The Court Judge in then cited a Massachusetts case which right action felt denied but it neces- Holmes opposition sary to a statement made to find some on criminal law. this the in Lord Coke Of Court (p 270): Sinhler stated authority law for a
“Even if the criminal
is faint
foregoing
must show at least that the com-
tort,
Judge
law offers no bar to the suit.
Holmes’
mon
d’appui
point
was
the unborn
real
child
decision
that
undoubtedly
part
This
was
of its mother.
was
accepted by
time,
the law at the
the medical vieiv
and it
precisely
the view
has altered since.”
(Emphasis supplied.)
gave
then
a detailed consideration of
Court
jurisdictions
pointing
and factors
out
various
(pp
271):
change the law
1949
have overruled former
“Since
seven States
recovery, including
denying
the four
decisions
above
dealing
Berlin,4
States,
cited in
nine
with the
question
The
upheld recovery.
time,
for the first
have
eighteen
recovery
that now allow
are:
States
(citing
cases).
States
present eight
deny recovery.
“At
States
In two
strongly
the courts note the recent trend and
indicate
likely.
Michigan,
that reversal is
These
are
La
Specker (1960),
Blue v.
state of medical rate existence In the Smith Case Justice fetus. Jersey supreme speaking court New said for the Proctor, in a unanimous [31 353, 362, this NJ decision 502]: A2d “ recovery denying rule reason for the third ‘The part theory of to child was a that an unborn was being person in therefore not mother, and the whom *26 duty All the could be owed. courts a of care injuries recovery prenatal permitted for have that theory. They disagreed have found with that have separate from its an infant of that the existence mother ities have * * * begins Medical author- before birth. recognised long in existence that a child is conception, merely moment the from body.’ (Citing authority.)” part mother’s its supplied.) (Emphasis by reversing the lower court concluded The Court procedendo. remanding the case with a very Pitts of Leal C. C. recent Texas case (decided Gravel, Sand & October SW2d 1967), points emphatically in in with the trend out definite appeals’ today. decision law The court the agreed (413 825) it stated that that case the SW2d presented, theory plaintiff’s but and rationale as supreme legislature thought the for the or it was change law in that State. rule of court to the prior supreme decision court reversed recovery injury for and allowed the court subsequently and then born live baby was who viable Dissenting Opinion M. T. Kavanagh, change (p law, in the the court said died. Of the 822): research indicates that since counter “Our this right trend no court has denied a evident, became injuries prenatal of action alive to a viable infant born problem given has been re-examina- where tion.” (3d ed), p Prosser on ch 10, 56, Torts gives
Professor Prosser consideration to the field of prenatal injuries. points nearly He out that all the prior recovery to 1946 denied decisions to the child prenatal injuries because there was no first,— person in diffi- existence; second, because proofs. saying (p .culty 355): continues, with the He duty far is existence at the concerned, “So as if necessary, authority recognized time medical has long since that the child is in existence from conception, many purposes moment and for its recognized by existence is the law. The criminal regards separate entity, law property as a and the law of being purposes init for all which considers taking by benefit, are to its such as will descent. birth, After it has been held that it maintain its statutory par- action for the far causation concerned, ent. So there will certainly be cases which there are difficulties of proof, they frequent, but are no more and the diffi- greater, many are no than as to culties other medical problems. prob- All writers who have discussed the joined condemning lem have rule, old in main- taining path child unborn in the of an *27 person automobile is as much in the street as the urging recovery in mother, should be upon proper proof.” allowed goes point years He on to out that the of criticism finally brought of the rule have had their effect and “spectacular abrupt the about most reversal” of legal history rule in the of tort law. PowERS "by T. M. Dissenting Opinion Kava:nagh; stage embry- problem Treating of what at the in- development redress for should he there onic 357): (pp juries, Prosser states Professor injured; “Certainly no less infant be the stage ignoring logic at which all is of in favor knowledge embryology But with our it occurs. what nancy, preg- beginning approach it as we is, knowledge, medical and therefore medical proof testimony in- causes, becomes and medical unsatisfactory, creasingly so unreliable and good This, however, for caution. there is reason goes undoubtedly proof principle; and is if, rather than as injuries there are to which case, proof possible, makes no sense medical it reliable is (Em- deny recovery any arbitrary to phasis supplied.) on basis.” directly Professor Prosser then turns to the issue question in this case—that whether makes is, if the live or is stillborn. He difference child is born jurisdictions majority at that the the time states (1964) printing of his book are more con- wrong compensation distressing with for a cerned action even if the child is stillborn. and allow the agree with Professor Prosser that the must We proof difficulty while the the mother’s child deny recovery. Today reason to is no womb making great in this area of medicine strides field testing.5 prenatal Damage Detected “Genetic Testing Gains “Prenatal “By Rudy Abramson Angeles Times “The Los approaching ability scien.ee is clini- “St. Louis —Medical identify many cally in the womb born mal- babies which will be genetic University damage, George Washington because of formed has disclosed. researcher technique clinically in 20 which has been used cases with “The accuracy, withdrawing specimen of per involves a small cent surrounding developing fetus, growing it in fluid the amniotie tissue culture, studying genetic earry then the chromosomes which responsible heredity. material *28 Mich
Dissenting Opinion by T. M. J. Kavanaíjh, opinion We are told Justice 0’Haha in Ms that: “Considering plain import ‘person’ the of the word at the time of enactment of onr statute and its uni- interpretation through years, ‘ordinary significa- the we feel obli- form gated to accord to the term its legislatively employed.” tion’ (Emphasis when supplied.) interpretation through years uniform con sists of one City decision — that of Newman v. supra. Detroit, obligated We, feel too, to accord ordinary signification” the term legisla “its when tively employed, giving “person” the term the same Michigan Supreme given construction the Court has compensation it in workmen’s in cases, criminal law, and abortion in cases, descent and distribution of property damage including and in cases, civil cases, dramshop statute. In all instances save the supra, “person” Case, Newman to interpreted has been conception. include a child from the time of all of the above mentioned instances this Court has legislature “person” found to used the word conception. Clearly, include a fetus from time of legislature “person” used the word with the years, “Over the last technique few has been used in 200 patients in or more director of research conducted Dr. Jacobson, Cecil B. George Washington University's reproductive genetics unit, who work in developments described the a talk on new in geneties human symposium before a Friday. science writers here mutations genetic “Jacobson said he believes the pro- number ducing increasing. malformed children is technique withdrawing “The amniotic fluid from the womb century, has been available potential since the 19th but using only being ability it is now inspect realized with the chromo- somes and their specific associate abnormalities with malformations. genetically eight “At including least induced malformations — Mongolism Phenylketonuria ones (PKU) well-known —can (cid:127) now be identified. analysis “If the chromosomal of fetal cells from the amniotic widely procedure genetic fluid should beeome a damage therapeutic to be defective would used in cases where suspected, present presumably permit abortion laws would grounds give abortion on birth to a child known endanger Journal, the health of the mother.” (Carried Lansing, in Michigan, The State on November 1967.) PowERS Dissenting T. M. Kavanagh, Michigan wrongful meaning drafting same death act. subsequently “person” used section
The word providing 2 of go death act that the shall *29 “persons” entitled those who be Since the law descent when recovered. it children, includes unborn should distribution legislature “per- presumed used the term that the be act with both sections of the death son” in People, meaning. Simmons, rel. v. ex See the same Munising, Township syllabus 629, 213Mich where says: 3 language con- identical “Identical should receive act.” the same struction when found lightly do decisions con We overrule settled standing struing any statute. The of a section supra, construing is one Case, Newman that decision approach dignity aof well- an which not interpretation. act does Smith Bak v. Lawrence settled See citing following ing Company, Mich 169, 177, 370 Country Club, 40 32, 315 US White Winchester (62 619); States 86 L ed and United 425, S Ct 413). Raynor, (58 82 ed 353, L Ct US S Company, Autio v. Proksch see Construction Also, majority includ Court, of this 377 Mich ing where of Justices the dissents O’Hara—over Justice beyond the one- and Dethmers —went Black, Kelly, rule. case should that the Newman Case is, therefore, It clear hereby re- as conclusions, be and overruled its clearly validity gardless are erro- in their having been an historic at this there date, theology, neous philosophy, change science, not in but as to abor- the law without distinction medicine, and compensation cases, tort tion cases, workmen’s dramshop including cases, act descent claims property act cases. and distribution of or death Mich Dissenting Kavanagb:, Opinion by T. M. enough go
It no in the would be we further (1) ease, determination of this clear person Baby Boy Powers was a from the time of conception, (2) injuries that he suffered which (3) death, caused that if he had survived he his injuries. would have a cause action for the had every death act such case, Our states that “in * * * person who if liable, would have been death ensued, had not shall be to an action for dam- liable notwithstanding person ages, in- jured.” (Emphasis supplied.) The act makes no distinction as to time of death. stopping here, however,
Without we turn our attention to the cases in other heretofore decided jurisdictions directly point that are with this case. Almost all of the cases are collected in 15 ALR3d 992 in an annotation “Action entitled, for death of p unborn child.” section of the annotation, at *30 jurisdictions 14 listed which have 995, are held that be maintained an action to recover wrongful death of an unborn child.6 6 (1962), Le Clero Supp (181 v. 23 Conn 256 Connecticut — Gorke (1966), Katala Markiewicz 26 448); Supp (224 v. Conn 358 A2d 406). A2d Worgan Greggo Ferrara, (1956), v. Ino. 50 Del 258 Delaware — (128 557). A2d Georgia (1955), App (87 v. Lassiter 91 100). Ga 712 SE2d — Porter (1960, Iowa), Lillo Supp (applying Iowa — Wendt v. DC 182 D 56 law). Iowa (1962), (368 Kansas — Kale v. Manion Kentucky 189 1). Kan 143 P2d (1955, Ky), v. Couch 285 SW2d — Mitchell Cooper (1923, App), (dic v. Blanck La 39 So 2d 352 Louisiana — Light tum); (1951, Valence Louisiana Power App) v. Co. La So 2d 847. Maryland State, Odham, use (1964), Sherman v. 234 Md 179 — (198 71). A2d Minnesota — Verkennes (1949), (38 v. Cornied 229 Minn 365 NW2d 634). ALK2d Mississippi Sainey (1954), (72 v. Korn 434). 221 Miss 269 So 2d — Hampshire—Poliguin (135 New (1957), . MacDonald 101 NH 104 v 249). A2d (1959), Ohio — Stidam v. Ashmore (11 App Ohio Ohio Ops 106). 2d 167 NE2d PowERg Dissenting Opinion by T. M. Kavanagh, page At 999of annotation, under section are jurisdictions liability listed 10 which denied under the same or similar facts.
For this Court to decide this case as do the shrink- ing minority today, of courts and as Justice O’Hara turning would us do, have would be to sanction the judicial reverting back of the clock and and scien- long tific fallacies since obsolete. writing majority opinion Justice Voelker,
Steger Blanchard, 140, 144, 353 Mich said: necessary; properly applied they “Rules of law are succinctly gather can in the loose ends of a case and help rationalize the decision. Our courts could scarcely operate them. without But when a rule application of law or its becomes so divorced from reality, living the context of from the human situa- sought applied, tions to which it is to be it becomes meaningless downright incantation and harmful.” prime purpose put of the death act was to an end to the common-law rule that tort-feasors whose injured acts than killed rather their victims would escape liability. designed per- The death act was recovery mit not purpose. even after death. This Court should a strained construction of the act defeat its Since it is not before at this Court we time, up question damages. do not take Appeals affirming order the Court of entry summary judgment of the trial court’s should be reversed and case remanded to the circuit entry denying court for an order motion for summary judgment.
Plaintiff shall have costs. 2d (applying South Carolin a —Fowler Woodward Wisconsin — Kwaterski Wis 42) ; 2d Todd v. 14 (148 South Carolina NW2d Sandidge 107). law). State Constr. Co. Farm Mut. *31 (1964), (1964, Auto. CA 244 SC 608 Ins. 4), 341 E2d 75 Co. (138 (1967), SE