Newman v. City of Detroit , 281 Mich. 60 ( 1937 )

Plaintiff brought suit under the survival act (3 Comp. Laws 1929, §§ 14040-14060), claiming that plaintiff's mother, while a passenger on a street-car, owned and operated by defendant, was injured through the negligence of the motorman, and that decedent thus suffered prenatal injuries from which he died three months after birth. The accident occurred 22 days prior to his birth at the end of the normal period of gestation. It is alleged that as a result of the accident decedent suffered injuries to his skull and others of an internal nature, those to the head causing hydrocephalus and brain hemorrhage, resulting in death. Defendant made a motion to dismiss on the ground that decedent, an unborn child and unable to contract, could not become a passenger for hire, and also that neither under the common law nor under any statute in this State is there any liability to an infant for prenatal injuries. The trial judge, in denying the motion to dismiss, drew an analogy from the criminal law in reference to the wilful killing of an unborn quick child by any injury to its mother. Act No. 328, § 322, Pub. Acts 1931. As the question of liability to a child for prenatal injuries was never before this court, we allowed an appeal in the nature of certiorari.

Appellant claims that to permit such recovery, in view of the fact that it is not provided for at common law or legislative enactment, would be judicial legislation on our part; that it would open the door to fraud and perjury, that the cause of physical or mental defects that appear at childbirth or thereafter may be congenital, or due to injuries prior or subsequent to the accident, on account of which liability is asserted, or may have been due to the use of instruments or other mishaps at parturition. Appellee, on the other hand, calls our attention to the criminal law. But there is no claim of any criminal liability and there is no statute governing civil liability. Appellee further points to the survival act (3 Comp. Laws 1929, § 14040), which provides that an action for personal injuries to a person should survive. It is admitted that decedent had viability at the time of the accident, but in order for an action to survive, it must have existed at the time of the person's death.

We are also referred to the statutes of descent and distribution, which permit a child en ventre sa mere at the time of the death of the parent to inherit from such parent.^* These statutes are not applicable.

Appellee further contends that where there is a wrong, there should be a remedy, and claims that the question of causation is a matter of proof, the same as in other actions for negligence. These arguments may well be addressed to the legislature.

The question before us has been passed upon in other jurisdictions. In some inferior courts where decisions were reversed in the appellate courts and in Kine v. Zuckerman, 4 Pa. Dist. County Rep. 227, recovery was allowed for prenatal injuries. However, the overwhelming weight of authority is to the contrary. Dietrich v. Northampton, 138 Mass. 14 (52 Am.Rep. 242); Walker v. Railway Co., 28 L. R. 69 (Ireland); Allaire v. St. Luke's Hospital, 76 Ill. App. 441, affirmed in 184 Ill. 359 (56 N.E. 638, 48 L.R.A. 225, 75 Am. St. Rep. 176); Gorman v. Budlong, 23 R.I. 169 (49 A. 704, 55 L.R.A. 118, 91 Am. St. Rep. 629); Buel v. United RailwaysCo., 248 Mo. 126 (154 S.W. 71, 45 L.R.A. [N. S.] 625, Ann. Cas. 1914C, 613); Lipps v. Milwaukee Electric Ry. Light Co.,164 Wis. 272 (159 N.W. 916, L.R.A. 1917B, 334); Stanford v.Railway Co., 214 Ala. 611 (108 So. 566); Nugent v. RailwayCo., 154 A.D. 667 (139 N.Y. Supp. 367), appeal dismissed in 209 N.Y. 515 (102 N.E. 1107); Drobner v. Peters, 232 N.Y. 220 (133 N.E. 567, 20 A.L.R. 1503); Magnolia Coca ColaBottling Co. v. Jordan, 124 Tex. 347 (78 S.W. [2d] 944, 97 A.L.R. 1513). Plaintiff has no cause of action under the common law or under any statute.

The order of the lower court denying the motion to dismiss is reversed, with costs to appellant, and the cause is remanded, with instructions to enter an order granting motion to dismiss.

FEAD, C.J., and NORTH, WIEST, BUSHNELL, SHARPE, POTTER, and CHANDLER, JJ., concurred.

^* See 3 Comp. Laws 1929, §§ 13452, 15726. — REPORTER.