Goodrich v. Moore , 8 Mich. App. 725 ( 1967 )

8 Mich. App. 725 (1967) 155 N.W.2d 247

GOODRICH
v.
MOORE.

Docket No. 3,047.

Michigan Court of Appeals.

Decided December 4, 1967. Leave to appeal denied April 3, 1968.

Stiles & Fowler, for plaintiff.

Fraser, Trebilcock, Davis & Foster (Eugene F. Townsend, Jr., of counsel), for defendants.

Leave to appeal denied April 3, 1968. See 380 Mich. 764.

LESINSKI, C.J.

Plaintiff appeals from a summary judgment granted on defendants' motion below.^[1]

The instant case was preceded by another action between the same parties on the same claim. In the first action, the defendants filed a motion for summary judgment on the ground that a stillborn infant, who was en ventre sa mere at the time of the defendants' allegedly wrongful act, did not enjoy the protection of the wrongful death act.^[2] The trial judge denied this motion. Later, the first action was dismissed without prejudice on different grounds, unrelated to those urged in the motion for summary judgment.

Plaintiff then brought the instant action still seeking recovery under the wrongful death act. In the instant case, plaintiff alleged that the negligent operation of a motor vehicle by the defendant, Mary A. Moore, was the proximate cause of the death of Baby Girl Goodrich who was, at the time of the accident, a six-month fetus, en ventre sa mere. The vehicle driven by Mary A. Moore was owned by defendant Henry Moore. Defendants moved for summary judgment on the same ground urged by them in the first action.

Defendants submitted as authority in support of their motion our recent opinion in Powers v. City of Troy (1966), 4 Mich. App. 572. The factual situation and the issue before us here duplicate those presented to us by the Powers Case of a year ago. Another review of law so recently reviewed would serve no useful purpose.^[3]

The issue decided in Powers was that an unborn child, negligently injured by a defendant and subsequently stillborn, is not a person within the meaning of the Michigan wrongful death act, and hence no cause of action could be maintained for recovery by the administratrix of the decedent's estate under said act. Powers controls in the instant case.

However, the plaintiff maintains that the order in the first action denying the defendants' motion for summary judgment is res judicata of a stillborn child's rights under the wrongful death act, thereby precluding the granting of the summary judgment appealed from in the instant case.

Plaintiff's argument is unsound. The order denying defendants' summary judgment motion in the first case was interlocutory only. It did not finally dispose of the lawsuit. It is well settled that such an interlocutory order does not have res judicata effect. Restatement, Judgments (1942), § 41.^[4] See, also, Cleveland v. City of Detroit (1948), 322 Mich. 172, 180, in which the Michigan Supreme Court rejected an argument like the one plaintiff here advances.

Moreover, the denial of a motion for summary judgment does not preclude such a judgment being granted at a later stage in the same case. Chesnow v. Nadell (1951), 330 Mich. 487, 490; Eisner v. Williams (1941), 298 Mich. 215, 219; Sweitzer v. Littlefield (1941), 297 Mich. 356, 362. By analogy the denial of such a motion would not preclude its being granted in a subsequent action on the same claim, after the first action is dismissed without prejudice.

Finally, the accelerated judgment of dismissal was granted in the first case on procedural grounds, rather than on the merits, and without prejudice. Such a judgment does not preclude the plaintiff from maintaining another action on the same claim. Restatement, Judgments (1942), § 49. Thus, the judgment which terminated the first case was neither a decision on the merits nor a final disposition, both of which are required for a judgment to have res judicata effect. Indeed, the dismissal of the first case without prejudice means that no order in the first case is final. It follows that neither the order denying the motion for summary judgment nor the judgment of dismissal without prejudice is res judicata of the rights of a stillborn infant under the wrongful death act.

After the dismissal of the first case without prejudice, plaintiff availed himself of the opportunity thus afforded him and began a new action. Under these circumstances, we agree with the trial court that the principle of res judicata has no application.

Affirmed. Costs to appellees.

QUINN and BAUM, JJ., concurred.

NOTES

[1] See GCR 1963, 117.

[2] See, currently, CLS 1961, § 600.2922, as amended by PA 1965, No 146 (Stat Ann 1965 Cum Supp § 27A.2922).

[3] We do not ignore the recent Massachusetts case presented for our consideration in plaintiff's supplemental brief. In Torigian v. Watertown News Co. (1967), 352 Mass 446 (225 NE2d 926), the Massachusetts supreme judicial court overruled Dietrich v. Inhabitants of Northampton (1884), 138 Mass 14 (52 Am Rep 242). In Dietrich, Mr. Justice Holmes, who was at that time sitting on the Massachusetts court, wrote its opinion which held that there was no right of recovery for death in an administrator in an action based on prenatal injury. We merely note that our decision in Powers v. City of Troy (1966), 4 Mich. App. 572, was based on Michigan law, and that the Massachusetts decision in Torigian, supra, is not binding on this Court.

[4] "The rules of res judicata are not applicable where the judgment is not a final judgment." p 161

"Where a judgment has been given in an action but it is not a final judgment, it is not conclusive between the parties in a subsequent action whether based upon the same cause of action or upon a different cause of action." p 164