State Ex Rel. Odham v. Sherman ( 1964 )

Henderson, J.,

delivered the opinion of the Court.

This appeal is from a judgment entered upon motion under Rule 502 for the determination of an issue of law prior to trial. In effect, the trial court held that a viable child born dead was not a “person” under Code (1957), Art. 67, secs. 1 and 4 (still known as Lord Campbell’s Act), or under Code (1957), Art. 93, secs. 18 and 112, authorizing actions by administrators.

The applicable statutes provide as follows:

(Art. 67, sec. 1) “Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the * * * person who would have been liable if death had not ensued, * * * shall be liable to an action for damages, notwithstanding the death of the person injured * *

(Sec. 4) “Every such action shall be for the benefit of the * * * parent * * * of the person whose death shall have been so caused * *

(Art. 93, sec. 18) “Whenever any person shall die intestate, * * * letters of administration may forthwith be granted by the orphans’ court of the county wherein was the party’s mansion house or residence; * *

(Sec. 112) “Executors and administrators shall have full power to commence and prosecute any personal action whatever, at law or in equity, which the testator or intestate might have commenced and prosecuted, * * * provided, that if the death of the testator or intestate shall have resulted from the wrong for which any such personal action might have been commenced, then the executor or adminstrator shall be entitled to recover the funeral expenses of said testator or intestate, not to exceed, however, the sum of one thousand dollars ($1,000.00), in addition to any other damages recoverable in such actions; * *

For present purposes the facts conceded are that the mother of the child, while riding as a passenger with the defendant, Sherman, who was driving a car owned by the defendant, Werner, suffered serious injuries as a result of the negligence of the defendants. Her child, who was a full-term viable child in the ninth month of development, was also injured and was delivered stillborn shortly thereafter.

This Court held in Damasiewicz v. Gorsuch, 197 Md. 417 (1951), that a cause of action lay for the negligent blinding of a child en ventre sa mere, when suit was brought after its birth for its prenatal injuries. Since that date, many courts have taken the same view, in some instances overruling prior decisions. See Amann v. Faidy, 114 N. E. 2d 412 (Ill.) (1953). In 1960, Massachusetts declined to follow the earlier decision by Mr. Justice Holmes in Dietrich v. Northhampton, 138 Mass. 14 (1884). Keyes v. Construction Service Inc., 165 N. E. 2d 912 (Mass.). See also Sinkler v. Kneale, 164 A. 2d 93 (Pa.), and Smith v. Brennan, 157 A. 2d 497 (N. J.), decided in 1960, and Seattle-First National Bank v. Rankin, 367 P. 2d 835 (Wash.) (1962) ; see Notes, 10 A.L.R. 2d 1059 ; 27 A.L.R. 2d 1256. Some courts have extended the rule to non-viable children, a point we need not here consider.

On the precise point before us, where the child is born dead, there are well considered cases that allow recovery. See Verkennes v. Corniea, 38 N. W. 2d 838 (Minn.) (1949) ; Rainey v. Horn, 72 So. 2d 434 (Miss.) (1954); Mitchell v. Couch, 285 S. W. 2d 901 (Ky.) (1955); Poliquin v. MacDonald, 135 A. 2d 249 (N. H.) (1957); Stidam v. Ashmore, 167 N. E. 2d 106 (Co. Ct. App., Ohio) (1959); Wendt v. Lillo, 182 F. Supp. 56 (D. C. N. D. Iowa) (1960) ; Hale v. Manion, 368 P. 2d 1 (Kan.) (1962); Gorke v. LeClerc, 181 A. 2d 448 (Super. Ct., Conn.) (1962). See also Valence v. Louisiana Power & Light Co., 50 So. 2d 847 (Orleans Ct. App., La.) (1951), and Morgan v. Greggo & Ferrara, Inc., 128 A. 2d 557 (Super. Ct., Del.) (1956). There are cases to the contrary, notably in New York. In re Logan’s Estate, 156 N. Y. S. 2d 49 (Surr. Ct.) (1956), aff’d, 156 N. Y. S. 2d 152, aff’d 3 N. Y. 2d 800, 144 N. E. 2d 644. In that case, however, the child was not viable. Nor was it viable in the cases of Mace v. Jung, 210 F. Supp. 706 (D. C. Alaska), or West v. McCoy, 105 S. E. 2d 88 (S. C.). But see In re Scanelli, 142 N. Y. S. 2d 411 (Surr. Ct.) (1955), and Muschetti v. Pfizer & Co., 144 N. Y. S. 2d 235 (Co. Sup. Ct., 1955). See also Keyes v. Construction Service, Inc., supra (Mass.). To the same effect, but upon widely different reasoning, see Drabbels v. Skelly Oil Co., 50 N. W. 2d 229 (Neb.) (1951); Howell v. Rushing, 261 P. 2d 217 (Okla.) (1953); Hogan v. McDaniel, 319 S. W. 2d 221 (Tenn.) (1958). Cf. Durrett v. Owens, 371 S. W. 2d 433 (Tenn.). Recovery has been allowed under a statute dealing with “homicide” in Georgia. Porter v. Lassiter, 87 S. E. 2d 100 (1955) (cert. den. Ga. Sup. Ct.). It has been denied by construction of the statutes in California. Norman v. Murphy, 268 P. 2d 178 (D. Ct. App., Calif.) (1954). See also Note, 10 A.L.R. 2d 639. The authorities and various reasons for granting or denying recovery are discussed in an article in 110 U. Pa. L. Rev. 554, 556.

We think the decision of this Court in Damasiewicz is virtually controlling here. We there recognized that, at least in the case of a viable child, such child had a cause of action when born alive, arising out of a prenatal injury due to the negligent act of a third person. The cause of action arose at the time of the injury and we see no more reason why it should be cut off because of the child’s death before birth, than if it died thereafter. The wrongful act would have entitled the “party injured to maintain an action * * * if death had not ensued,” and under the plain words of the death statute we think the action survives, or permits the parents to recover, notwithstanding the death of the child.

The holding in Damasiewicz was that the cause of action existed at common law under the facts there presented. Although the point had not been decided previously in Maryland, under the accepted theory the cause of action had been available all along and was in existence when Lord Campbell’s Act was enacted in 1852. But even if the holding in Damasiewics had been effective only as a prospective change in the law, it would still be included within the scope of Lord Campbell’s Act. We have held that a right conferred upon a sister under the Workmen’s Compensation Act gave rise to an action under Lord Campbell’s Act, even though it was not mentioned therein and could not have been in the contemplation of the Legislature when Lord Campbell’s Act was enacted. See Storrs et al. v. Mech et al., 166 Md. 124, 129; Cf. Taylor, et al. v. State, use of Mears, et al., 233 Md. 406. See also State v. Nabella, 176 F. Supp. 668 (D. C. Md.). What is true of Lord Campbell’s Act is also true of the statute allowing the child’s cause of action to survive and be litigated by an administrator. Both statutes are remedial and designed to close a gap in the preexisting law. See Van Beeck v. Sabine Towing Co., 300 U. S. 342, 350.

It is argued, however, that even if the word “person” in the statute includes a viable child, and the weight of present authority is in favor of recovery, the right of recovery on the part of the unborn child is conditioned upon its being born alive. It is true that some of the cases speak of the child’s “being born alive.” In Damasiewicz (p. 441), Chief Judge Marbury said: “The law itself deals with rights, and since we now know that a child does not continue until birth to be a part of its mother, it must follow that as soon as it becomes alive it has rights which it can exercise.” We think this language was not intended to impose a limitation or condition of birth. The wrongful act took place before birth and gave rise to a cause of action at that time. Cf. Redfern v. Holtite Mfg. Co., 209 Md. 106, 111. Naturally a new born babe could not exercise the rights previously acquired, in proper person, since it is under a disability. Nor could a child en ventre sen mere exercise such rights. In either case, however, we think the right to damages for the wrong could be exercised on behalf of the child by its next friend, and such rights survive to its parents or administrator.

The appellees rely heavily upon a statement from 2 Harper & James, Torts, p. 1031: “Few cases have allowed separate recovery where the child is not born alive, [footnote omitted] and perhaps this is the fairest and most practical place to draw the line. It, too, would make arbitrary distinctions — as between the child killed just before delivery and one who dies just after - — but this sort of thing will be encountered wherever there must be a borderline.” We think the weight of present authority draws the line at least at a point where the common law concept of viability is in effect. We think the argument of practical convenience is not a proper test.

Judgment reversed and case remanded for further proceedings, costs ta abide the result.